Taylor v. First Resolution Invest. Corp. (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as

Taylor v. First Resolution Invest. Corp., Slip Opinion No. 2016-Ohio-3444.]

NOTICE

This slip opinion is subject to formal revision before it is published in an

advance sheet of the Ohio Official Reports. Readers are requested to

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65

South Front Street, Columbus, Ohio 43215, of any typographical or other

formal errors in the opinion, in order that corrections may be made before

the opinion is published.

SLIP OPINION NO. 2016-OHIO-3444

TAYLOR, EXR., APPELLEE, v. FIRST RESOLUTION INVESTMENT CORPORATION

ET AL., APPELLANTS.

[Until this opinion appears in the Ohio Official Reports advance sheets, it

may be cited as Taylor v. First Resolution Invest. Corp., Slip Opinion No.

2016-Ohio-3444.]

Consumer-debt collection—Fair Debt Collection Practices Act—Ohio Consumer

Sales Practices Act—Statutes of limitations—Accrual of cause of action—

R.C. 2305.03(B), Ohio’s borrowing statute—Time-barred collection action

as basis for asserting violations of consumer-protection statutes—R.C.

1343.03(A)—Statutory interest—Debt collector’s claim for interest that is

unavailable by law as basis for asserting violations of consumer-protection

statutes—Debt buyers collecting on credit-card debt and their attorneys are

subject to the Ohio Consumer Sales Practices Act.

(No. 2013-0118—Submitted November 20, 2013—Decided June 16, 2016.)

APPEAL from the Court of Appeals for Summit County,

No. 26042, 2012-Ohio-5653.

SUPREME COURT OF OHIO

_____________________

PFEIFER, J.

{¶ 1} This case began with a default on credit-card debt by an Ohio

consumer. It reaches this court because that consumer alleged violations of the

federal Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. 1692 et seq., and

the Ohio Consumer Sales Practices Act (“OCSPA”), R.C. 1345.01 et seq., by the

entities that purchased her debt and were involved in suing her to collect on it.

Today, we determine several issues relevant to the application of the FDCPA and

the OCSPA to the collection of purchased credit-card debt in Ohio. We hold that

the underlying cause of action for default on the credit card in this case accrued in

Delaware, the home state of the bank that issued the credit card and where the

consumer’s payments were made, and that Delaware’s statute of limitations—

through operation of Ohio’s borrowing statute—determines whether the collection

action was timely filed. We further hold that the filing of a time-barred collection

action may form the basis of a violation under both the FDCPA and the OCSPA.

We also hold that that a consumer can bring actionable claims under the FDCPA

and the OCSPA based upon debt collectors’ representations made to courts in legal

filings, specifically on a debt collector’s claim for interest that is unavailable to the

debt collector by law. Finally, we hold that debt buyers collecting on credit-card

debt and their attorneys are subject to the OCSPA.

BACKGROUND

Using Courts to Collect Purchased Debt

{¶ 2} The questions presented to us arise from the now common

phenomenon of debt sales, in which a creditor sells an individual’s debt to a private

entity that then attempts to collect the debt. The sale of debt can provide grease for

the wheels of commerce. “Debt buying can reduce the losses that creditors incur

in providing credit, thereby allowing creditors to provide more credit at lower

prices.” Federal Trade Commission, The Structure and Practices of the Debt

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Buying Industry (Jan. 2013) i, available at

http://www.ftc.gov/sites/default/files/documents/reports/structure-and-practices-

debt-buying-industry/debtbuyingreport.pdf (accessed Mar. 14, 2016) (“Structure

and Practices”). Private debt collectors often employ the court process to collect

the debt that they have purchased, and thus, courts have become vital cogs in the

machinery of debt collection. The threat of a lawsuit, an executed lawsuit, or a

judgment can be a powerful, intimidating force against a consumer.

A Problematic Process

{¶ 3} First-party debts are debts owed by a consumer to an entity that

initially extended credit to the consumer. Note, Improving Relief from Abusive

Debt Collection Practices, 127 Harv.L.Rev. 1447 (2014), fn. 1. When a consumer

falls in arrears on paying a debt, “first-party creditors frequently charge off the debt

(that is, account for the debt as being unrecoverable) and sell the rights to the

delinquent debt to debt buyers and collection agencies who specialize in the

collection of delinquent debts.” Id., citing Consumer Financial Protection Bureau,

Fair Debt Collection Practices Act: CFPB Annual Report 2013, at 8-9 (2013).

Those debts are then “bundled” into portfolios, which are purchased by debt buyers

through a bidding process, usually at a steep discount from the face value of the

debts. Improving Relief at 1448.

{¶ 4} During the debt-sale process, documentation of information about the

debt is often lost. Debt buyers receive some information about the debt, but “[f]or

most portfolios, buyers did not receive any documents at the time of purchase” and

“[o]nly a small percentage of portfolios included documents, such as account

statements or the terms and conditions of credit.” Structure and Practices at iii.

“Even when [account documents] are available and debt buyers request them, banks

often require additional payments to supply them. Such demands can prove

prohibitively expensive or encourage debt collectors to gather detailed evidence

only in sporadic cases.” Horwitz, Banks Face Official Backlash Against Card Debt

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Collection Practices, American Banker (Jan. 16, 2013), available at

http://www.americanbanker.com/issues/178_12/banks-face-official-backlash-

against-card-debt-collection-practices-1055929-1.html?pg=2 (accessed Mar. 14,

2016).

{¶ 5} Debt collectors go to court with the information they have. As an

industry that buys debt for an average of four cents per dollar of face value,

Structure and Practices at ii, consumer-debt collection, by its very nature, is a high-

volume enterprise. It is dependent in large part on the acquiescence, ambivalence,

or ignorance of consumers:

The consumer debt collection industry is premised on a high-

volume business model. Debt buyers holding portfolios of debts

with a low ratio of book value to face value seek to collect on a

sufficient number of debts to generate a profit, through direct

collection efforts as well as lawsuits. Empirical evidence shows that

many debt buyers using a high volume of lawsuits as a component

of their recovery strategy rely heavily on the assumption that

consumers often fail to show up to contest the case; this assumption

is largely valid. There may be several reasons for such a failure to

respond. Some of these reasons may themselves be related to

FDCPA violations, including defective notice, or may stem from a

(mistaken) consumer belief that no response is required if the debt

being sued upon is not actually hers. Most simply, many consumers

may not respond due to a misunderstanding of the legal procedures

required to avoid default. In addition, some debt collectors rely on

the assumption of default to pursue what has been called a

“scattershot” approach, whereby they file many lawsuits with the

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hope of securing default judgments, but without the intent to

actually litigate them should the opposing parties respond.

(Footnotes omitted.) Improving Relief, 127 Harv.L.Rev. at 1449.

{¶ 6} A predictable result of debt buyers filing a high volume of lawsuits

based on imperfect information is that lawsuits are regularly filed after the right to

collect debts has expired or that seek a debt that is not owed; “each year, buyers

sought to collect about one million debts that consumers asserted they did not owe.”

Structure and Practices at iv.

Statutory Protections

The FDCPA

{¶ 7} Federal and state statutes in play in this case provide protections

against such debt-collection abuses. “Congress passed the FDCPA to address ‘what

it considered to be a widespread problem’ of consumer abuse at the hands of debt

collectors.” Wise v. Zwicker & Assocs., P.C., 780 F.3d 710, 712-713 (6th

Cir.2015), quoting Frey v. Gangwish, 970 F.2d 1516, 1521 (6th Cir.1992). The

intent of the FDCPA is to “eliminate abusive debt collection practices” that have

contributed to personal bankruptcies, job loss, and invasions of individual privacy.

15 U.S.C. 1692(a) and (e); Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich,

L.P.A., 559 U.S. 573, 577, 130 S.Ct. 1605, 176 L.Ed.2d 519 (2010). “In reaction

to the size of the problem, [Congress] crafted ‘an extraordinarily broad’ remedial

statute.” Wise at 713, quoting Frey at 1521. The FDCPA prohibits debt collectors

from employing “any false, deceptive, or misleading representation or means in

connection with the collection of any debt,” including misrepresenting “the

character, amount, or legal status of any debt.” 15 U.S.C. 1692e(2)(A). A debt

collector may not employ any “unfair or unconscionable means to collect or attempt

to collect any debt,” 15 U.S.C. 1692f, and cannot collect “any amount (including

any interest, fee, charge, or expense incidental to the principal obligation) unless

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such amount is expressly authorized by the agreement creating the debt or permitted

by law,” 15 U.S.C. 1692f(1).

{¶ 8} When analyzing whether conduct giving rise to the claim fits within

the broad scope of the FDCPA, “the conduct is viewed through the eyes of the ‘least

sophisticated consumer.’ ” Currier v. First Resolution Invest. Corp., 762 F.3d 529,

533 (6th Cir.2014). That standard, while protecting “the gullible and the shrewd

alike,” also presumes “a basic level of reasonableness and understanding on the part

of the debtor.” Id.

{¶ 9} A plaintiff must prove four essential elements to establish a prima

facie case for a violation of the FDCPA:

1. [T]he plaintiff is a natural person who is harmed by

violations of the FDCPA, or is a “consumer” within the meaning of

15 U.S.C.A. §§ 1692a(3), 1692(d) for purposes of a cause of action,

15 U.S.C.A. § 1692c or 15 U.S.C.A. § 1692e(11);

2. [T]he “debt” arises out of a transaction entered primarily

for personal, family, or household purposes, 15 U.S.C.A.

§ 1692a(5);

3. [T]he defendant collecting the debt is a “debt collector”

within the meaning of 15 U.S.C.A. § 1692a(6); and

4. [T]he defendant has violated, by act or omission, a

provision of the FDCPA, 15 U.S.C.A § 1692a–1692o; 15 U.S.C.A

§ 1692a; 15 U.S.C.A § 1692k.

Whittiker v. Deutsche Bank Natl. Trust Co., 605 F.Supp.2d 914, 938-939 (N.D.Ohio

2009). “The absence of any one of the four essential elements is fatal to a FDCPA

lawsuit.” Id. at 939.

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January Term, 2016

{¶ 10} A plaintiff does not need to demonstrate that he or she suffered actual

damages in order to prevail on an FDCPA claim; the FDCPA “places the risk of

penalties on the debt collector that engages in activities which are not entirely

lawful, rather than exposing consumers to unlawful debt-collector behavior without

a possibility for relief.” Stratton v. Portfolio Recovery Assocs., L.L.C., 770 F.3d

443, 449 (6th Cir.2014). Further, courts have characterized the FDCPA as a strict-

liability statute, Fed. Home Loan Mtge. Corp. v. Lamar, 503 F.3d 504, 513 (6th

Cir. 2007); to establish liability, a plaintiff does not have to prove knowledge or

intent of the debt collector, Wise, 780 F.3d at 713.

{¶ 11} Who is potentially liable under the FDCPA? The FDCPA excludes

first-party creditors engaged in debt collection, but the statute broadly reaches the

actions of “debt collectors,” an inclusive statutory term that covers third-party debt

collectors as well as attorneys who regularly engage in debt-collection activities,

including litigation to collect debts owed by consumers. See 15 U.S.C. 1692a(6);

Heintz v. Jenkins, 514 U.S. 291, 293-294, 297-299, 115 S.Ct. 1489, 131 L.Ed.2d

395 (1995). In fact, in response “to the explosion of law firms conducting debt

collection businesses,” Congress in 1986 specifically repealed a prior version of the

FDCPA that had afforded attorneys an exemption from the statute’s reach.

Hemmingsen v. Messerli & Kramer, P.A., 674 F.3d 814, 817 (8th Cir.2012); see

McCollough v. Johnson, Rodenburg & Lauinger, L.L.C., 637 F.3d 939, 951 (9th

Cir.2011).

The OCSPA

{¶ 12} As we hold later in this opinion, the OCSPA also provides

protections for consumer debtors against debt collectors and their attorneys. The

act states that “[n]o supplier shall commit an unfair or deceptive act or practice in

connection with a consumer transaction.” R.C. 1345.02(A). R.C. 1345.03(A)

provides that “[n]o supplier shall commit an unconscionable act or practice in

connection with a consumer transaction.” State and federal courts in Ohio have

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SUPREME COURT OF OHIO

held that the OCSPA applies to debt collectors and to litigation activities. See, e.g.,

Hartman v. Asset Acceptance Corp., 467 F.Supp.2d 769, 780 (S.D.Ohio 2004), and

cases cited therein. We confirm the validity of those precedents today.

FACTUAL AND PROCEDURAL HISTORY

{¶ 13} Sandra J. Taylor Jarvis1 obtained a credit card, used it to make

purchases over several years, but she was eventually unable to make scheduled

minimum payments on the account, and the account was declared delinquent.

Taylor Jarvis’s debt was purchased and resold and eventually became owned by

appellant First Resolution Investment Corporation (“FRIC”), a subsidiary of a

Canadian corporation, appellant First Resolution Management Corporation

(“FRMC”). FRIC had incomplete documentation of the terms of the credit-card

agreement. Despite the centrality of the credit-card agreement to the parties’

positions in this litigation, no party has been able to produce it, and it is not in the

record before us.

{¶ 14} The case before us proceeded like many others. FRIC hired

appellants, Cheek Law Offices, L.L.C., and Parri Hockenberry, Esq. (collectively

“Cheek”), to file a lawsuit to collect on the debt. Cheek filed a complaint on March

9, 2010, and filed a motion for default judgment less than two months later. Within

a week of that motion, FRIC had a signed entry from the trial judge granting it a

default judgment, awarding it everything that it had asked for. Like clockwork, this

case started out as a typical case in the world of debt buying.

{¶ 15} But Taylor Jarvis was different from most defendants who are sued

in this way. She found out about the judgment against her and decided to fight it.

Six weeks after the entry of the default judgment, she successfully moved to vacate

it, and she later raised counterclaims against FRIC and Cheek. By doing so, she

has given this court the opportunity to address issues in her case that happen to be

1

Taylor Jarvis was the original appellee in the appeal to this court, but she died during its pendency.

Brian Taylor, the executor of her estate, has been substituted for her as the appellee.

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January Term, 2016

endemic to the whole debt-collection world and that impact Ohio courts. Those

issues include how to determine the proper statute of limitations in debt-collection

cases and whether the filing of lawsuits containing unsubstantiated claims can

constitute violations of the FDCPA and the OCSPA.

The Credit-Card Account and the Collection Action Against Taylor Jarvis

Offer and Acceptance

{¶ 16} Taylor Jarvis was a resident and domiciliary of Summit County. In

2001, Taylor Jarvis was solicited with a credit-card application in Ohio, completed

that application in Ohio, and mailed it from Ohio to the issuing bank in Delaware,

where it was approved. After her application was approved, Taylor Jarvis began

using the credit card. The issuing bank eventually became, through acquisitions,

Chase Bank USA, N.A. Although Taylor Jarvis’s credit-card account was with

banks with three different names over the years, it was always the same account,

and we collectively refer to the banks as “Chase.” There is no evidence that she

used the card for anything other than making purchases for personal, household,

and family use.

Account History

{¶ 17} Taylor Jarvis made payments on the account through at least part of

2004 and mailed those payments to an address in the state of Delaware; one invoice

in the record with a payment-due date of February 3, 2004, requested that payment

be made to an address in Illinois, but Taylor Jarvis stated in an affidavit that she

mailed all payments to Delaware, and there is no evidence in the record that

contradicts that statement. She last used the card for a purchase on May 5, 2004.

She then fell into arrears.

{¶ 18} Taylor Jarvis did not make the scheduled minimum payment on the

account that was due on January 1, 2005, and made no scheduled minimum monthly

payments thereafter. Her account was declared delinquent by Chase in February

2005. Subsequent credit-card billing statements during 2005 informed Taylor

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SUPREME COURT OF OHIO

Jarvis that her account was past due and warned her that she could lose charging

privileges on the account unless payment was made. Chase’s billing statement to

Taylor Jarvis for the payment due on May 2, 2005, which covered the billing period

from March 8 through April 7, stated, “Your charge privileges are now revoked.”

By January 31, 2006, Chase had “written off” Taylor Jarvis’s account.

{¶ 19} After suspending her charging privileges, Chase continued to send

Taylor Jarvis bills, including one requesting payment by February 1, 2006. That

bill showed a past-due amount of $1,481, a minimum payment due of $1,707, and

a balance of $9,065.37. That bill also showed that Taylor Jarvis was making

payments on the account, albeit in amounts less than the minimum due. Taylor

Jarvis made her last payment to Chase on the account, for $50, on June 28, 2006.

She had made a total of $1,150 in payments after the suspension of her charging

privileges.

{¶ 20} In February 2008, Chase sold its rights to Taylor Jarvis’s account to

Unifund Portfolio A, L.L.C. (“Unifund”). In June 2008, Unifund sold those rights

to FRIC.

{¶ 21} On September 16, 2009, FRIC, through FRMC, sent a “final notice”

to Taylor Jarvis. That notice advised Taylor Jarvis that her account had been

forwarded to a “pre-litigation department” and that unless the account was resolved

within 21 days, FRIC would forward the claim to a collection attorney.

Litigation

{¶ 22} On November 3, 2009, Cheek Law Offices sent Taylor Jarvis a letter

informing her that FRIC had advised Cheek that Taylor Jarvis owed $15,818.50 on

the account. Four months later, on March 9, 2010, Cheek filed suit against Taylor

Jarvis in Summit County Common Pleas Court seeking $8,765.37 on the account,

accrued interest of $7,738.99, and future interest of 24 percent. FRIC attached to

its complaint copies of the bills of sale of the rights to the account from Chase to

Unifund and from Unifund to FRIC, as well as a copy of one of the monthly billing

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January Term, 2016

statements that Chase had sent to Taylor Jarvis in 2006. The attached statement

showed that Taylor Jarvis was being charged interest on the unpaid balance on the

account at the rate of 24.99 percent. FRIC did not attach to the complaint a copy

of the credit-card agreement between Taylor Jarvis and Chase.

{¶ 23} Cheek filed a motion for default judgment on May 5, 2010, with an

accompanying affidavit from a FRIC employee, claiming that Taylor Jarvis owed

$8,765.37, accrued interest in the amount of $8,067.51, and continuing further

interest at the rate of 24 percent. By May 12, 2010, FRIC had a signed entry from

the trial judge granting it a default judgment, awarding it everything that it had

asked for.

Taylor Jarvis’s Counterclaims

{¶ 24} On June 28, 2010, Taylor Jarvis filed a motion to vacate the

judgment, and on July 26, 2010, the court granted the motion. On August 6, 2010,

Taylor Jarvis answered the original complaint, raising several affirmative defenses,

including a statute-of-limitations defense, and filed a number of class-action

counterclaims; her amended version of the counterclaims, filed on August 26, 2010,

included claims against FRIC, FRMC, and Cheek. Those claims were based on

alleged violations of the FDCPA and the OCSPA, along with a common-law claim

for abuse of process.

{¶ 25} Taylor Jarvis’s statutory claims flow from two theories—first, that

FRIC’s claim against Taylor Jarvis was time-barred by the statute of limitations

and second, that FRIC sought interest on Taylor Jarvis’s debt that was unavailable

to FRIC by law. Taylor Jarvis alleged that threatening to file a time-barred claim

and actually filing a time-barred claim against her constituted misleading and

deceptive collection practices under 15 U.S.C. 1692e and the OCSPA and unfair

and unconscionable collection practices under 15 U.S.C. 1692f and the OCSPA.

Central to Taylor Jarvis’s statute-of-limitations-based claims is the position that

FRIC’s claims against her accrued in Delaware and are thus governed by

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Delaware’s statute of limitations through operation of Ohio’s borrowing statute,

R.C. 2305.03(B). According to Taylor Jarvis, because Delaware law affords only

a three-year statute of limitations for actions to collect on debts, Del.Code Ann.,

Title 10, 8106(a), FRIC and Cheek knowingly brought an action that was barred by

the statute of limitations, thereby violating state consumer-protection and federal

fair-collection-practice laws.

{¶ 26} Taylor Jarvis also asserts that FRIC and Cheek improperly sought

24 percent interest on her debt in the complaint against her, purportedly under the

terms of the cardholder agreement. Taylor Jarvis asserted that since FRIC could

produce no written contract that set forth a rate of interest higher than the statutory

rate, it was limited to the statutory interest rate—4 percent at the time of the filing

of the complaint—pursuant to R.C. 1343.03. She further asserted that the actions

of FRIC and Cheek in seeking in the complaint more interest than was recoverable

constituted violations of U.S.C. 1692e and 1692f as well as the OCSPA.

The Trial Court’s Rulings

{¶ 27} After FRIC dismissed without prejudice its complaint against Taylor

Jarvis pursuant to Civ.R. 41(A), the trial court realigned the parties so that Taylor

Jarvis was the plaintiff. On cross-motions for summary judgment, the trial court

then entered judgment for Cheek and FRIC on Taylor Jarvis’s claims.

{¶ 28} As the trial court noted, Taylor Jarvis’s case turned, “in large part,

on whether Ohio’s borrowing statute applies to the facts of this case.” It stated:

If the Court determines that Ohio’s borrowing statute applies to this

case, the next question is whether [FRIC’s] claims accrued in Ohio

or Delaware. If the Court determines that the claims accrued in

Delaware, then they may be barred by Delaware’s three-year statute

of limitations.

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January Term, 2016

{¶ 29} The trial court held that the borrowing statute did not apply, that

Ohio law governed the determination of the statute of limitations, that Ohio law

imposed either a 6- or 15-year statute of limitations, and that under either limitation

period FRIC’s suit against Taylor Jarvis was commenced timely because it was

brought within six years of Taylor Jarvis’s breach.

{¶ 30} The court also ruled that Taylor Jarvis failed to show that FRIC and

Cheek violated the FDCPA or the OCSPA by requesting in a complaint

postjudgment interest in excess of the statutory rate. The court reasoned that a

prayer for relief in a complaint is not a demand to the debtor but is rather a request

for consideration to a court. Finally, the trial court also granted summary judgment

to FRIC and Cheek on Taylor Jarvis’s common-law abuse-of-process claim.

The Court of Appeals Reverses and Remands

{¶ 31} On appeal, the Ninth District Court of Appeals reversed, holding that

Delaware’s statute of limitations applied to FRIC’s claims. 2012-Ohio-5653, 983

N.E.2d 380, ¶ 29, 35-36 (9th Dist.). The appellate court further held that FRIC’s

suit to collect on the debt was time-barred and remanded the matter to the trial court

for consideration of Taylor Jarvis’s claims. Id. at ¶ 36, 42.

{¶ 32} The court also reversed the trial court’s ruling on Taylor Jarvis’s

claims based upon the interest rate sought by FRIC. The court held that FRIC in

its complaint was “enunciating its absolute entitlement to interest at a rate of 24

percent and * * * was demanding such from Ms. Jarvis, not from the trial court,”

and that Taylor Jarvis had established prima facie claims against FRIC and Cheek

under the FDCPA and the OCSPA. Id. at ¶ 41. The court remanded the issue

regarding the rate of interest sought to the trial court to consider whether the bona

fide error defense of 15 U.S.C. 1692k(c) applied:

Because the trial court found that a prayer in a complaint for interest

was not a demand to the debtor, it did not consider whether genuine

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issues of material fact existed regarding the existence of a bona fide

error defense. This Court declines to address that issue in the first

instance.

Id. at ¶ 42. Under 15 U.S.C. 1692k(c), a debt collector can escape liability by

showing “by a preponderance of evidence that the violation was not intentional and

resulted from a bona fide error notwithstanding the maintenance of procedures

reasonably adapted to avoid any such error.”

{¶ 33} The cause is before this court upon the acceptance of a discretionary

appeal. 135 Ohio St.3d 1412, 2013-Ohio-1622, 986 N.E.2d 29.

LAW AND ANALYSIS

The Statute of Limitations

{¶ 34} Statutes of limitations are designed to protect defendants from stale

claims, but for many consumers, they do not. In most states, the expiration of the

statute of limitations does not automatically extinguish a debt and is instead

an affirmative defense that consumers themselves must raise and

prove before courts will dismiss actions to collect on their debts. As

the [Federal Trade] Commission has noted, because 90% or more of

consumers sued in these actions do not appear in court to defend,

filing these actions creates a risk that consumers will be subject to a

default judgment on a time-barred debt.

Structure and Practices at 45.

{¶ 35} The filing of a time-barred lawsuit by a debt collector has been held

to constitute a violation of 15 U.S.C. 1692e and 1692f for falsely representing the

legal status of a debt and employing an unfair means to attempt to collect a debt.

Phillips v. Asset Acceptance, L.L.C., 736 F.3d 1076, 1079 (7th Cir.2013); Dudek v.

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January Term, 2016

Thomas & Thomas Attorneys & Counselors at Law, L.L.C., 702 F.Supp.2d 826,

833 (N.D.Ohio 2010). The court in Suesz v. Med-1 Solutions, L.L.C., 757 F.3d 636,

639 (7th Cir.2014) (en banc) described the too-common scenario: “[T]he debt

collector hopes that the debtor will be unaware that he has a complete defense to

the suit and so will default, which will enable the debt collector to garnish the

debtor’s wages.”

{¶ 36} Thus, determining the correct statute of limitations on the underlying

collection action is essential to this case and others like it. The appellate court

below held that this court’s decision in Gries Sports Ents., Inc. v. Modell, 15 Ohio

St.3d 284, 473 N.E.2d 807 (1984), and 1 Restatement of the Law 2d, Conflict of

Laws, Section 188 (1971), apply to the conflict-of-laws question in this case. See

2012-Ohio-5653, 983 N.E.2d 380, at ¶ 24. That conclusion was correct insofar as

this case may implicate questions as to the applicable substantive law regarding the

credit-card agreement. But the salient question is whether the statute of limitations,

which is governed by procedural law, had run. “[L]imitation provisions are

remedial in nature, and are therefore controlled by the law of the forum.” Howard

v. Allen, 30 Ohio St.2d 130, 133, 283 N.E.2d 167 (1972). As this court stated in

Kerper v. Wood, 48 Ohio St. 613, 622, 29 N.E. 501 (1891): “Statutes of limitations

relate to the remedy, and are, and must be, governed by the law of the forum; for it

is conceded that a court which has power to say when its doors shall be opened has

also power to say when they shall be closed.”

{¶ 37} Since Ohio is the forum state of this case, Ohio law determines the

statute of limitations. But Ohio has a borrowing statute, which is a legislative

exception to the general rule that a forum state always applies its own statute-of-

limitations law. Combs v. Internatl. Ins. Co., 354 F.3d 568, 578 (6th Cir.2004). In

essence, a borrowing statute directs a forum court to “borrow” the limitation period

of another state if the cause of action accrued in that foreign state and that state’s

limitation period is shorter than the forum state’s limitation period. Dudek at 835,

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citing Combs at 578, and CMACO Automotive Sys., Inc. v. Wanxiang Am. Corp.,

589 F.3d 235, 244 (6th Cir.2009). Pursuant to its borrowing statute, R.C.

2305.03(B), Ohio applies the statute of limitations of the state where the cause of

action accrued in instances when that state’s statute of limitations is shorter. R.C.

2305.03(B) provides:

No civil action that is based upon a cause of action that

accrued in any other state, territory, district, or foreign jurisdiction

may be commenced and maintained in this state if the period of

limitation that applies to that action under the laws of that other state,

territory, district, or foreign jurisdiction has expired or the period of

limitation that applies to that action under the laws of this state has

expired.

{¶ 38} As the trial court held, the key issue in determining the applicable

statute of limitations in this case is the effect of R.C. 2305.03(B). That statute

determines whether the statute of limitations of Ohio—Taylor Jarvis’s home—or

Delaware—where Chase is headquartered and where Taylor Jarvis stated in her

affidavit that she mailed her signed credit-card agreement and sent all of her

payments—is applicable in this case.

{¶ 39} The borrowing statute prevents a litigant from gaining the benefit of

an Ohio statute of limitations when the state where the cause accrued has a shorter

statute of limitations. As the United State Supreme Court wrote about Ohio’s

earlier, similar version of the borrowing statute that was later repealed, “The

purpose of the state’s borrowing statute as those of other states, was apparently to

require its courts to bar suits against an Ohio resident if the right to sue him had

already expired in another state where the combination of circumstances giving rise

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to the right to sue had taken place.” (Footnotes omitted.) Cope v. Anderson, 331

U.S. 461, 466, 67 S.Ct. 1340, 91 L.Ed. 1602 (1947).

{¶ 40} There is no dispute that as applicable to this case, Ohio law provided

that the statute of limitations for suit on a written contract was 15 years. Former

R.C. 2305.06. The statute of limitations for suit on a contract not reduced to writing

is six years. R.C. 2305.07. In this case, the parties failed to enter the written credit-

card agreement into evidence. Accordingly, absent the borrowing statute, the

applicable limitation period for FRIC’s suit would be supplied by R.C. 2305.07,

which limits the viability of any action to six years after the cause of action accrued.

{¶ 41} But if the borrowing statute is applicable to this case, Delaware’s

shorter, three-year statute of limitations on contract actions applied to the collection

action, rather than Ohio’s six-year statute of limitations.

The Jurisdiction of Accrual

{¶ 42} Where the cause of action accrued is the key element of the

borrowing statute. Thus, we must determine where the underlying collection claims

accrued in this case. The most relevant precedent favors the conclusion that the

cause of action accrued in Delaware, which is where the debt was to be paid and

where Chase suffered its loss.

{¶ 43} In Meekison v. Groschner, 153 Ohio St. 301, 306-307, 91 N.E.2d

680 (1950), this court addressed the question of where a cause of action accrued on

a promissory note that had been executed in Michigan, but that required the

promisor to pay off the note in Napoleon, Ohio. This court considered whether

Ohio’s borrowing statute in place at that time (which was very similar to current

R.C. 2305.03(B)) required that the cause of action on the unpaid note should be

subject to Michigan’s statute of limitations or Ohio’s. This court concluded that

the claim arose not where the contract was executed—Michigan—but where the

contract was made payable—Ohio:

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Where was that default? The Heaths were obligated to pay

the note at Napoleon, Ohio. If it was not paid at Napoleon on its due

date, a default would occur at Napoleon and a cause of action would

arise for the first time because of the default at Napoleon. It seems

to us unassailable that the cause of action arose where the default

occurred, and therefore the Ohio statute * * * governs the instant

case and an action on the note must be brought within 15 years after

the cause thereof accrued.

Id at 307. The Heaths were residing in Michigan when they made the decision to

not pay the note. Thus, where they were when they made the decision to not pay

the note played no role in this court’s determination of where the cause of action

accrued.

{¶ 44} In a case directly on point, involving a suit based on a New York

resident’s default on a credit card issued by a Delaware bank, New York’s highest

court held that New York’s borrowing statute required an application of Delaware’s

statute of limitations, because the cause of action for nonpayment accrued in

Delaware. The court held that “[i]f the claimed injury is an economic one, the cause

of action typically accrues ‘where the plaintiff resides and sustains the economic

impact of the loss.’ ” Portfolio Recovery Assocs., L.L.C. v. King, 14 N.Y.3d 410,

416, 901 N.Y.S.2d 575, 927 N.E.2d 1059 (2010), quoting Global Fin. Corp. v

Triarc Corp., 93 N.Y.2d 525, 529, 693 N.Y.S.2d 479, 715 N.E.2d 482 (1999).

Since the bank was located in Delaware, that state’s statute of limitations applied.

{¶ 45} In Hamid v. Stock & Grimes, L.L.P., E.D.Pa. No. 11-2349, 2011 U.S.

Dist. LEXIS 96245 (Aug. 26, 2011), the court determined that Pennsylvania’s

borrowing statute required an application of Delaware’s statute of limitations

because the cause of action for nonpayment on a credit card accrued in Delaware,

where the bank failed to receive payment:

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January Term, 2016

Here, the damage to Discover Bank occurred when it did not

receive the payment due on August 12, 2006 at its post office box in

Dover, Delaware. While Hamid’s failure to mail her payment may

have set events in motion, it was in Delaware where the final

significant event took place, that is, where Discover Bank sustained

injury from non-payment of Hamid’s debt. It was not until Discover

Bank failed to receive Hamid’s check on August 12, 2006 that it was

able to sue her for breach of contract. We conclude that the place

where the claim in the underlying action accrued was in Delaware.

Id. at *5-6.

{¶ 46} In another case directly on point, Conway v. Portfolio Recovery

Assocs., L.L.C., 13 F.Supp.3d 711 (E.D.Ky.2014), the court, in applying

Kentucky’s borrowing statute, held that the credit card issuer’s breach-of-contract

claim against a Kentucky-resident cardholder accrued in Virginia, the location

where the bank, Capital One, should have received payment. The court sought to

identify where “ ‘the injurious consequences of the alleged wrongful conduct

occurred.’ ” Id. at 718, quoting Abel v. Austin, 411 S.W.3d 728, 737 (Ky.2013).

{¶ 47} The court pointed out the impracticality of using the location where

the cardholder made the decision to not make his payment as the place of the accrual

of the action:

Presumably, Capital One has similar agreements with multiple

customers in multiple locations, but receives payments from those

customers at one central location. It would be impossible for Capital

One to know where any of those customers happen to be when they

decide not to pay. Rather, as a practical matter, the only way Capital

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One can determine a customer is in default is when payment is not

received at the central location in Virginia by a certain date.

(Emphasis sic.) Id. at 720-721. The court concluded that “[b]ecause the due date

passing without payment being received was the final event that allowed Capital

One’s cause of action to accrue, and was also the event that actually resulted in

damages to Capital One, the breach must have occurred when and where payment

was not received, which in this case was Virginia.” Id. at 719.

{¶ 48} We follow our own precedent and that of New York’s highest court

and the cited federal courts and hold that the cause of action against Taylor Jarvis

for her failure to pay the debt accrued in the jurisdiction where the debt was to be

paid, Delaware.

The Time of Accrual

{¶ 49} The time of accrual of the cause of action on Taylor Jarvis’s debt is

an important consideration in this case not only to determine from what point the

statute of limitations begins to run: FRIC and Cheek argue that the cause of action

on the debt accrued before the effective date of R.C. 2305.03(B), so that even if

Chase’s cause of action accrued in Delaware, Ohio’s borrowing statute is

inapplicable. The effective date of R.C. 2305.03(B) was April 7, 2005.

Am.Sub.S.B. No. 80, 150 Ohio Laws, Part V, 7915, 7930-7931, 8037. The trial

court apparently accepted the arguments of FRIC and Cheek that Chase’s claims

accrued when Taylor Jarvis failed to make the minimum monthly payment in

January 2005, and it found that since Chase’s claims accrued prior to the effective

date of the statute, the borrowing statute could not apply. We agree that the cause

of action accrued when Taylor Jarvis failed to make her minimum payment in

January 2005, but we determine that R.C. 2305.03(B) nonetheless applies to the

cause of action against her.

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January Term, 2016

{¶ 50} Although there is no credit-card agreement in evidence in this case,

Taylor Jarvis has not disputed that a contract existed between her and Chase.

“Credit card agreements are contracts whereby the issuance and use of a credit card

creates a legally binding agreement.” Bank One, Columbus, N.A. v. Palmer, 63

Ohio App.3d 491, 493, 579 N.E.2d 284 (10th Dist.1989). There is no dispute that

a precursor of Chase issued a credit card to Taylor Jarvis and that she used the card

to make purchases. A cause of action for breach of a credit-card agreement based

on nonpayment accrues when the obligation to pay under the agreement becomes

due and owing and the cardholder does not make an agreed-to monthly payment.

Dudek, 702 F.Supp.2d at 839; Citibank, N.A. v. Hyslop, 10th Dist. Franklin No.

12AP-885, 2014-Ohio-844, ¶ 16-17; Discover Bank v. Heinz, 10th Dist. Franklin

No. 08AP-1001, 2009-Ohio-2850, ¶ 17; Discover Bank v. Poling, 10th Dist.

Franklin No. 04AP-1117, 2005-Ohio-1543, ¶ 18.

{¶ 51} Taylor Jarvis also has not disputed that under her contract she was

bound to make a minimum monthly payment. Nor has she disputed that she failed

to make the minimum payment due on January 1, 2005, and failed to make a

minimum payment thereafter. We have already held that the cause of action

accrued in Delaware, where Chase Bank did not receive payment from Taylor

Jarvis. The location of accrual informs the time of the accrual:

[T]he elements of time and place of accrual are inextricably

intertwined: “The time when a cause of action arises and the place

where it arises are necessarily connected, since the same act is the

critical event in each instance. The final act which transforms the

liability into a cause of action necessarily has both aspects of time

and place.”

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CMACO Automotive Sys., 589 F.3d at 243, fn. 7, quoting Helmers v. Anderson, 156

F.2d 47, 51 (6th Cir.1946).

{¶ 52} We determine that the cause of action accrued when Taylor Jarvis

failed to make the minimum payment due in January 2005.

{¶ 53} But this finding does not make Ohio’s borrowing statute inapplicable

in this case. It is true that Article II, Section 28 of the Ohio Constitution prohibits

the General Assembly from enacting retroactive laws. But there is no indication

that the General Assembly intended R.C. 2305.03(B) to be retroactive—it is written

to apply prospectively to all cases commenced after its effective date. The statute

reads:

No civil action that is based upon a cause of action that

accrued in any other state * * * may be commenced and maintained

in this state if the period of limitation that applies to that action under

the laws of that other state * * * has expired or the period of

limitation that applies to that action under the laws of this state has

expired.

(Emphasis added.)

{¶ 54} R.C. 2305.03(B) applies to civil actions “commenced and

maintained” in Ohio after the effective date of the statute. “Statutes of limitations

are remedial in nature.” Flagstar Bank, F.S.B. v. Airline Union’s Mtge. Co., 128

Ohio St.3d 529, 2011-Ohio-1961, 947 N.E.2d 672, ¶ 7. And this court has held that

“ ‘[l]aws of a remedial nature providing rules of practice, courses of procedure, or

methods of review are applicable to any proceedings conducted after the adoption

of such laws.’ ” Estate of Johnson v. Randall Smith, Inc., 135 Ohio St.3d 440,

2013-Ohio-1507, 989 N.E.2d 35, ¶ 20, quoting Kilbreath v. Rudy, 16 Ohio St.2d

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January Term, 2016

70, 242 N.E.2d 658 (1968), paragraph two of the syllabus. Thus, as a remedial

statute, the borrowing statute applies to proceedings conducted after its adoption.

{¶ 55} But what of the concern that R.C. 2305.03(B) potentially applies to

causes of action that accrued but were not commenced before the effective date of

the statute? This court has recognized that a statute that applies prospectively may,

through its operation, violate the Retroactivity Clause if it destroys vested rights:

We have also stated that the “retroactivity clause nullifies those new

laws that ‘reach back and create new burdens, new duties, new

obligations, or new liabilities not existing at the time [the statute

becomes effective].’ Miller v. Hixson (1901), 64 Ohio St. 39, 51, 59

N.E. 749, 752.” Bielat [v. Bielat], 87 Ohio St.3d [350,] 352-353,

721 N.E.2d 28 [2000]. In Van Fossen [v. Babcock & Wilcox Co.,

36 Ohio St.3d 100, 522 N.E.2d 489 (1988)], this court stated that the

constitutional limitation against retroactive laws “ ‘include[s] a

prohibition against laws which commenced on the date of enactment

and which operated in futuro, but which, in doing so, divested rights,

particularly property rights, which had been vested anterior to the

time of enactment of the laws.’ ” [Id. at 105], quoting Smead, The

Rule Against Retroactive Legislation: A Basic Principle of

Jurisprudence (1936), 20 Minn.L.Rev. 775, 781-782.

Tobacco Use Prevention & Control Found. Bd. of Trustees v. Boyce, 127 Ohio

St.3d 511, 2010-Ohio-6207, 941 N.E.2d 745, ¶ 14.

{¶ 56} The shortening of a statute of limitations, however, does not

necessarily extinguish a vested right. This court has held that the shortening of a

statute of limitations is constitutionally permissible when it does not destroy an

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existing cause of action. The continued vitality of the cause of action after the

amendment of the statute is the crucial factor in the inquiry. This court has

delineated between the operation of an amended statute of

limitations which totally obliterates an existing substantive right and

one which merely shortens the period of time in which the remedy

can be realized. The latter application of an amended statute is not

unlawful as long as a prospective claimant or litigant * * * is still

afforded “ ‘a reasonable time [within] which to enforce’ his right.”

[Gregory v.] Flowers [, 32 Ohio St.2d 48,] 54 [,290 N.E.2d 181

(1972), quoting Smith v. New York Cent. RR. Co., 122 Ohio St. 45,

49, 170 N.E. 637 (1930)].

(Emphasis sic.) Cook v. Matvejs, 56 Ohio St.2d 234, 237, 383 N.E.2d 601 (1978).

{¶ 57} In sum, “ ‘[a] period of limitations already running may also be

shortened by the legislature’ as long as ‘a period sufficiently long to allow a

reasonable time to begin suit’ is allowed.” State ex rel. Nickoli v. Erie MetroParks,

124 Ohio St.3d 449, 2010-Ohio-606, 923 N.E.2d 588, ¶ 29, quoting 1A Sackman,

Nichols on Eminent Domain, Section 4.102[3], at 4-74 (3d Ed.2006).

{¶ 58} Here, the date of the accrual of the cause of action was only a little

over three months before the effective date of the borrowing statute. Granted, the

application of the borrowing statute to FRIC’s claims in this case reduces the

applicable statute of limitations from six years to three. But even with that

shortening, there existed a reasonably long period of time for FRIC to file suit.

Thus, an application of R.C. 2305.03(B) in this case is not unconstitutionally

retroactive.

{¶ 59} With Delaware’s statute of limitations controlling this case, FRIC’s

complaint was filed well outside the applicable statute of limitations. We affirm

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January Term, 2016

the judgment of the court of appeals that FRIC and Cheek are potentially liable

under the FDCPA and the OCSPA for threatening to file suit and for filing suit on

a time-barred debt, and we remand the case to the trial court for further

determinations, including a determination of the effect of our holding on this issue

on Taylor Jarvis’s claim for abuse of process.

The Interest Claim

{¶ 60} Taylor Jarvis asserted claims against FRIC and Cheek pursuant to

the FDCPA and the OCSPA based on the claim in FRIC’s complaint that it was

entitled to postjudgment interest in excess of the applicable statutory rate. The trial

court granted summary judgment to FRIC and Cheek on the issue, relying primarily

on the decision in Argentieri v. Fisher Landscapes, Inc., 15 F.Supp.2d 55

(D.Mass.1998), for the proposition that setting forth a claim in a prayer for relief

filed with a court is distinguishable from other conduct in which a debt collector

may engage.

{¶ 61} In Argentieri, the plaintiff in a federal-court action alleged an

FDCPA violation based upon a request for attorney’s fees that had been made in a

state-court complaint in a breach-of-contract action; the plaintiff asserted that the

FDCPA was violated because there was no statutory or contractual basis for such

an award. Id. at 58-59. According to Argentieri, a prayer for relief is just a request

to the court:

A prayer for relief in a complaint, even where it specifies the

quantity of attorney’s fees, is just that: a request to a third party—

the court—for consideration, not a demand to the debtor himself. A

request for attorney’s fees ultimately rests upon the discretion of the

court and a determination of applicability at a later stage of the

litigation. The whole purpose of regulating debt collection was to

“supervise” a range of unsupervised contacts, such as demand letters

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and late-night telephone calls. In contrast, a statement in a pleading

is supervised by the court and monitored by counsel. The two

situations are drastically different.

(Footnote omitted.) Argentieri at 61-62.

{¶ 62} We disagree with that statement. A prayer for 24 percent interest is

an intimidating statement to a debtor. According to Argentieri, such a prayer is

“supervised by the court and monitored by counsel.” But in a case that is filed with

the anticipation of obtaining a default judgment, how much “supervision” of

statements in a pleading is actually conducted? In this case, as in many others,

there was none. “Unsupervised contacts” by debt collectors are annoyances;

demands to a court, on the other hand, have the force of the legal system behind

them. Debt collectors borrow the legitimacy of the justice system to back up their

claims. “[A] civil filing serves as a credible threat to inflict harm on the defendant”

by damaging the defendant’s credit rating and thus “may induce the defendant to

pay.” Hynes, Broke But Not Bankrupt: Consumer Debt Collection in State Courts,

60 Fla.L.Rev. 1, 20 (2008). As one court put it,

an unsophisticated consumer reading the State Court Complaint

could be left with the false impression that [the law firm that filed

the complaint] was legally entitled to recover an award of attorneys’

fees in addition to the amount of the debt allegedly owed. This false

impression, in turn, could subtly coerce the consumer to pay the debt

out of the fear of incurring even greater liability.

Samms v. Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara & Wolf,

L.L.P., 112 F.Supp.3d 160, 164 (S.D.N.Y.2015).

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{¶ 63} Federal courts have held that a court filing is not a safe harbor for

debt collectors under the FDCPA. In Heintz, 514 U.S. at 294, 115 S.Ct. 1489, 131

L.Ed.2d 395, the United States Supreme Court held that the FDCPA “applies to the

litigating activities of lawyers.” Relying on that holding, federal “circuit courts

have widely recognized that litigation-related conduct, including the filing of

formal complaints, can give rise to claims under the Act.” Lipscomb v. The Raddatz

Law Firm, P.L.L.C., 109 F.Supp.3d 251, 260 (D.D.C.2015).

{¶ 64} In Kaymark v. Bank of Am., N.A., 783 F.3d 168, 177 (3d Cir.2015),

the court held that “a communication cannot be uniquely exempted from the

FDCPA because it is a formal pleading or, in particular, a complaint.” In that case,

the consumer, Kaymark, had defaulted on a mortgage held by Bank of America

(“BOA”). A law firm representing BOA initiated foreclosure proceedings against

the consumer in state court. The foreclosure complaint included an itemized list of

total debt, which included $1,650 in attorney’s fees that had not yet been incurred

at the time of the filing and other allegedly improper fees. Id. at 173. Kaymark’s

subsequent action against BOA and the law firm included a claim that by attempting

to collect fees for legal services not yet performed in the mortgage foreclosure, the

law firm had violated the FDCPA. Id at 174. The court held that “the Foreclosure

Complaint conceivably misrepresented the amount of the debt owed, forming a

basis for violations of [15 U.S.C.] 1692e(2)(A) and (10)” and that Kaymark had

also “sufficiently alleged that [the law firm’s] attempt to collect those

misrepresented fees was not ‘expressly authorized’ by the mortgage contract or

permitted by law,” forming the basis for a violation of 15 U.S.C. 1692f(1).

Kaymark at 175, quoting 15 U.S.C. 1692f(1). In response to the law firm’s

argument that pleadings cannot be the basis of FDCPA claims, the court concluded

that “the statutory text, as well as the case law interpreting that text, renders this

argument meritless.” Id. at 176.

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{¶ 65} In Miljkovic v. Shafritz & Dinkin, P.A., 791 F.3d 1291 (11th

Cir.2015), the court stated that “because debts are often collected through the

judicial process, * * * we think it would ‘compel absurd results’ indeed if abusive,

misleading, or unconscionable documents submitted to a court (and served on the

consumer or his counsel) in an attempt to collect on any debt were excluded from

the [FDCPA]’s proscriptions.” Id. at 1303, fn. 8, quoting Jerman, 559 U.S. at 600,

130 S.Ct. 1605, 176 L. Ed. 2d 519. The court in Miljkovic ultimately determined

that the court filing at issue—a reply to the consumer’s claim of an exemption from

a garnishment action—did not rise to the level of an FDCPA violation. Id. at 1306.

But as to the broader question, the court stated,

The statutory text is entirely clear: the FDCPA applies to lawyers

and law firms who regularly engage in debt-collection activity, even

when that activity involves litigation, and categorically prohibits

abusive conduct in the name of debt collection, even when the

audience for such conduct is someone other than the consumer.

Id. at 1297.

{¶ 66} A recent decision of the Sixth Circuit Court of Appeals involved a

scenario akin to the present case—the consumer’s FDCPA cause of action was

based on a debt collector’s improper claim for interest on a credit-card debt. In

Stratton v. Portfolio Recovery Assocs., 770 F.3d at 445, the court held that a debt

collector’s improper claim for statutory interest made in a complaint filed in a state

trial court could form the basis for a claim by the consumer under the FDCPA. In

Stratton, the credit-card user, Stratton, had stopped making payments on her credit

card; her contract with GE Money Bank (“GE”) established an interest rate of 21.99

percent. Id. at 446. Once GE determined that the debt was uncollectible, it stopped

charging Stratton interest on the debt, for reasons that, according to the federal

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January Term, 2016

circuit court, were “neither irrational or altruistic: By charging off the debt and

ceasing to charge interest on it, GE could take a bad-debt tax deduction * * * and

could avoid the cost of sending Stratton periodic statements on her account.” Id. at

445. GE then sold the debt to Portfolio Recovery Associates, L.L.C. (“PRA”). Id.

{¶ 67} Two years after buying the debt, PRA filed suit against Stratton,

alleging that she “ ‘owes [PRA] $2,630.95 with interest thereon at the rate of 8%

per annum from December 19, 2008[,] until the date of judgment with 12% per

annum thereafter until paid, plus court costs.’ ” Id. at 446, quoting PRA’s

complaint. Kentucky’s usury statute sets the legal rate of interest for all loans made

in that state at 8 percent unless the parties agree in writing to a higher rate.

Ky.Rev.Stat.Ann. 360.010(1). Stratton at 445.

{¶ 68} Stratton filed a putative class action against PRA in federal court,

alleging that PRA’s attempt to collect 8% interest for the period

between the date GE charged off Stratton’s debt and the date it sold

that debt to PRA violated the FDCPA. In particular, Stratton alleged

that the 8% interest was not “expressly authorized by the agreement

creating the debt or permitted by law,” 15 U.S.C. § 1692f(1), that

PRA had falsely represented the “character” of Stratton’s debt and

the “amount” she owed, § 1692e(2)(A), and that PRA’s suit to

recover interest it was not owed was a “threat” to take an “action

that cannot legally be taken,” § 1692e(5).

Id. at 446.

{¶ 69} The district court dismissed Stratton’s case, concluding that “even

an unsophisticated consumer would have understood that the request for interest

was just a request, and would not have been misled by it.” Stratton v. Portfolio

Recovery Assocs., L.L.C., E.D.Ky. No. 5:13-147-DCR, 2013 WL 6191804, *5

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(Nov. 26, 2013). Further, the district court held that the state-court collection action

did not constitute a threat, but was instead a “lawful vehicle” to recover Stratton’s

debt. Id. at *7.

{¶ 70} The Sixth Circuit reversed, first establishing that the interest sought

by PRA in its complaint was not authorized by law. The court found that the 8

percent statutory interest rate was unavailable to PRA because it was unavailable

to GE due to the contract GE had negotiated with Stratton:

GE waived its right to collect contractual interest, a right it had

acquired in part by forgoing its right to collect statutory interest. GE

gave up the right to collect 8% statutory interest when it had Stratton

agree to a 21.99% contractual rate of interest. GE cannot recover

the right it bargained away simply because it later chose to waive

the right for which it bargained.

Stratton, 770 F.3d at 448.

{¶ 71} In Stratton, the Sixth Circuit recognized that pursuing the

unavailable 8 percent interest rate against the consumer could constitute an FDCPA

violation. The court rejected the district court’s holding, which had relied on

Argentieri:

The district court distinguished “claims made in court from the type

of abusive tactics most often invoked under the FDCPA” and saw

“no need to invoke the protections” of the Act “when a claim is made

to the court,” (quoting Argentieri v. Fisher Landscapes, Inc., 15

F.Supp.2d 55, 62 (D.Mass.1998)). Both Supreme Court precedent

and the other traditional tools of statutory construction make clear

that the district court’s understanding of the FDCPA is untenable.

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(Footnote omitted.) Stratton at 449.

{¶ 72} First, the court noted that the United States Supreme Court

recognized in Heintz that the FDCPA applies to the litigating activities of lawyers.

Stratton at 449. Second, the court pointed out that the FDCPA from its inception

“reflected Congressional concern with abusive litigation tactics” through the

enactment of 15 U.S.C. 1692i, the FDCPA’s “fair venue” provision, which was

designed to combat the problem of forum abuse—an unfair practice in which debt

collectors seek to obtain default judgments by filing suit in courts so distant or

inconvenient that consumers cannot make an appearance. Id. at 449-450. Third,

the Stratton court recognized that post-Heintz amendments to 15 U.S.C. 1692e

specifically exempt formal pleadings only “ ‘from a sole particularized requirement

of the FDCPA: the requirement [in 15 U.S.C. 1692e(11)] that all communications

state that they come from a debt collector.’ ” Stratton at 450, quoting Sayyed v.

Wolpoff & Abramson, 485 F.3d 226, 231 (4th Cir.2007). Relying on the Fourth

Circuit’s reasoning in Sayyed, the Stratton court determined that formal pleadings

are subject to the other provisions of 15 U.S.C. 1692e:

As the Fourth Circuit explained, “[t]he amendment by its terms in

fact suggests that all litigation activities, including formal pleadings

are subject to the FDCPA, except to the limited extent that Congress

exempted formal pleadings from the particular requirements of §

1692e(11).”

Stratton, 770 F.3d at 450, quoting Sayyed at 231. The Stratton court concluded,

“In sum, absent strong evidence of an exemption, the FDCPA’s protections are

available wherever unscrupulous debt collection practices might be found—and

most certainly in litigation.” Id.

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{¶ 73} Having determined that the filing of a complaint can constitute an

FDCPA violation, the Stratton court employed the “least sophisticated consumer”

test—“ ‘the usual objective legal standard in consumer protection cases’ ”—in

considering PRA’s complaint. Id., quoting Gionis v. Javitch, Block & Rathbone,

L.L.P., 238 Fed.Appx. 24, 28 (6th Cir.2007). The Stratton court held that “[a]s the

drafter of the complaint, PRA ‘is responsible for its content and for what the least

sophisticated [consumer] would have understood from it.’ ” Id. at 451, quoting

McLaughlin v. Phelan Hallinan & Schmieg, L.L.P., 756 F.3d 240, 246 (3d

Cir.2014).

{¶ 74} Pursuant to that standard, the court found that Stratton had alleged

numerous plausible FDCPA violations:

Because PRA does not have the right to collect interest on Stratton’s

debt, PRA’s allegation to the contrary is a “false representation” of

the “character” and “amount” of Stratton’s debt. § 1692e(2); see

also Gearing v. Check Brokerage Corp., 233 F.3d 469, 472 (7th

Cir.2000). PRA’s state court suit is an “attempt” to collect an

“amount”—$2,630.95 plus 8% interest—that is neither “expressly

authorized” by any agreement in the record nor “permitted by law.”

§ 1692f(1). And from the perspective of the least sophisticated

consumer it is also a “threat” by PRA “to take action that cannot

legally be taken”—namely, to recover 8% interest.

Id.

{¶ 75} The court in Stratton rejected the argument put forth by PRA that its

request for statutory interest was merely an aspirational request to the state court,

rather than a representation of the legal status of the debt. The court found it

significant that PRA had not sought a nonspecific, open-ended amount that the state

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court might have deemed appropriate, but rather, in the numbered allegations in the

complaint had stated, “ ‘The Defendant(s) owes the plaintiff $2,630.95, with

interest thereon at the rate of 8% per annum.’ ” (Emphasis added by the court.) Id.,

770 F.3d at 451, quoting the complaint. The court found that “even a sophisticated

consumer would read that numbered paragraph from the complaint to be a factual

allegation rather than an ‘aspirational request.’ ” Id. The court held:

Thus, PRA’s argument fails for two reasons: PRA’s allegation was

not a “simple request” and there is no protection for a representation

that is inaccurate. Saying that Stratton owed $2630.95 plus

whatever interest the court chooses to award is simply not the same

as saying that Stratton owed $2630.95 plus 8% interest from the date

GE charged off her account. PRA averred the latter. It is therefore

plausible that PRA’s complaint falsely represents both the

“character” and “amount” of Stratton’s debt. An unsophisticated

consumer would most certainly have been misled.

Id.

{¶ 76} We agree with the overarching conclusion reached by the court in

Stratton that both the text and purpose of the FDCPA as well as the reality of the

debt-collection industry’s pursuit of default judgments as part of its typical

collection strategy require the application of the FDCPA to abusive and unfair

tactics employed in litigation:

The FDCPA governs debt collection in or out of court; it does not

allow debt collectors to use litigation as a vehicle for abusive and

unfair practices that the Act forbids. The district court’s [statement

that there is “ ‘no need to invoke the protections’ ” of the FDCPA

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“ ‘when a claim is made to the court,’ ” (quoting Argentieri, 15

F.Supp.2d at 62)] conflicts with the text and purpose of the FDCPA

and ignores the reality of the debt collection business, where “some

debt collectors have foregone all meaningful attempts to

communicate with debtors and have instead opted to file lawsuits

against debtors en masse in an effort to collect enforceable default

judgments.” Matthew R. Bremner, The Need for Reform in the Age

of Financial Chaos, 76 Brook. L.Rev. 1553, 1587 (2011); see also

Crawford v. LVNV Funding, LLC, 758 F.3d 1254, 1256 (11th

Cir.2014). * * * By alleging in a complaint that a consumer owes

interest that had in fact been waived, a debt collector may be able to

secure a default judgment for an amount the consumer does not

actually owe. See Suesz, 757 F.3d at 639. The FDCPA proscribes

such practices.

Stratton at 451-452.

{¶ 77} Like the debt collector in Stratton, FRIC in its complaint sought an

interest rate to which it was not entitled. A creditor is limited to interest at the

statutory rate unless a written contract provides a different rate of interest, pursuant

to R.C. 1343.03(A). Minster Farmers Coop. Exchange Co., Inc. v. Meyer, 117

Ohio St.3d 459, 2008-Ohio-1259, 884 N.E.2d 1056, ¶ 25-27. “ ‘An invoice or

monthly statement does not constitute such a writing.’ ” Id. at ¶ 27, quoting WC

Milling, L.L.C. v. Grooms, 164 Ohio App.3d 45, 2005-Ohio-5420, 841 N.E.2d 324,

¶ 20 (4th Dist.), citing Yager Materials, Inc. v. Marietta Indus. Ents., Inc., 116 Ohio

App.3d 233, 235-236, 687 N.E.2d 505 (4th Dist.1996). FRIC filed its complaint

and motion for default judgment seeking an interest rate above the maximum

statutory rate, but it attached only a billing statement to its complaint to support that

rate of interest and did not attach a copy of the credit-card agreement that Taylor

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Jarvis had signed. Pursuant to R.C. 1343.03(A), when there is not a written contract

the statutory rate is determined by a formula set forth in R.C. 5703.47; in 2010,

when the complaint was filed, that rate was 4 percent. See

http://www.tax.ohio.gov/ohio_individual/individual/interest_rates.aspx.

{¶ 78} As in Stratton, the complaint against Taylor Jarvis here alleged that

she was required to pay a specific rate of interest; FRIC did not simply request

interest at a rate the trial court might deem appropriate. The request is set forth in

paragraph three of the complaint:

Upon information and belief, Plaintiff is owed the charged

off sum of $8,765.37, plus accrued interest of $7,738.99, for a total

amount owed of $16,504.36, plus future interest at 24.00 % and

Defendant(s) is/are in default of his/her/their obligation to pay said

balance.

The specificity of the complaint belies the idea that FRIC’s claim of entitlement to

24 percent interest was merely an aspirational request to the court rather than a

representation of the legal status of the debt.

{¶ 79} FRIC and Cheek rely on Harvey v. Great Seneca Fin. Corp., 453

F.3d 324, 333 (6th Cir.2006), in which the court held that filing a lawsuit to collect

a purported debt without the immediate means of proving the existence of the debt

does not constitute a violation of the FDCPA. In Harvey, the consumer had filed a

responsive pleading to a state-court collection complaint and had sought discovery

from the debt collector and its attorneys—culminating in the consumer filing a

motion to compel—concerning the ownership and amount of the debt. The debt

collector did not respond to discovery and dismissed its complaint. The consumer

then filed suit in federal court, alleging that the debt collector and its law firm knew

that they lacked documentation to prove the existence of the debt for which they

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filed a state-court collection action and that the filing of a complaint under those

circumstances constituted a deceptive debt-collection practice. Id. at 326.

{¶ 80} In affirming the district court’s dismissal of the consumer’s

complaint, the Sixth Circuit held that “a debt may be properly pursued in court,

even if the debt collector does not yet possess adequate proof of its claim.” Id. at

333. The court in Harvey quoted the reasoning of a federal district court in a similar

case:

“[F]iling a lawsuit supported by the client’s affidavit attesting to the

existence and amount of a debt * * * is not a false representation

about the character or legal status of a debt, nor is it unfair or

unconscionable. A defendant in any lawsuit is entitled to request

more information or details about a plaintiff’s claim, either through

formal pleadings challenging a complaint, or through discovery.

[The consumer] does not allege that anything in the state court

complaint was false, or that the complaint was baseless. She

essentially alleges that more of a paper trail should have been in the

lawyers’ hands or attached to the complaint. The FDCPA imposes

no such obligation.”

Harvey at 331, quoting Deere v. Javitch, Block, & Rathbone, L.L.P., 413 F.Supp.2d

886, 891 (S.D.Ohio 2006).

{¶ 81} The court in Harvey pointed out that Harvey did not allege in her

complaint that the debt collector and its law firm had failed to undertake a

reasonable investigation into whether or not Harvey’s debt existed; rather, “she

essentially focused on the contention” that the debt collector and law firm “did not

presently possess the means of proving that debt” when the state-court complaint

was filed. Harvey, 453 F.3d at 333.

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January Term, 2016

{¶ 82} Harvey is distinguishable for several reasons. First, the consumer in

this case alleges more than the consumer alleged in Harvey. Taylor Jarvis’s

pleading in this case alleged not only that FRIC and Cheek filed a lawsuit against

her without possessing at that time of filing the means of proving the debt, but she

also alleged that they regularly maintain lawsuits such as the one against her

“without the intention or ability to ever obtain evidence” that would establish

FRIC’s entitlement to interest in excess of the statutory rate. We agree with courts

that have found that allegations of this type—regarding the lack of intent to

investigate or prove claims on behalf of debt collectors—distinguish cases such as

this one from Harvey. See, e.g., Rollins v. Midland Funding, L.L.C., E.D.Mo. No.

4:14CV01976 ERW, 2015 WL 3506556, *8 (June 3, 2015), citing Hinten v.

Midland Funding, L.L.C., E.D.Mo. No. 2:13CV54 DDN, 2013 WL 5739035, *7

(Oct. 22, 2013), and Brewer v. LVNV Funding, L.L.C., E.D.Mo. No. 4:14CV00942

AGF, 2014 WL 5420274, *2 (Oct. 22, 2014).

{¶ 83} Further, FRIC here went far beyond simply filing a complaint

without yet having “adequate proof of its claim.” Harvey at 333. FRIC filed its

complaint in March 2010, without including a copy of the credit-card agreement.

It quickly sought a default judgment. It did not retreat from the claim for 24 percent

interest for which it lacked adequate documentation when it moved for default

judgment; instead, it attached an affidavit from a FRIC employee to the motion for

default judgment asserting that FRIC was owed “interest at the rate of at least” 24

percent. About two months after filing the complaint, it had a judgment entry

awarding it 24 percent postjudgment interest. But it never had the necessary

documentation to back up its claim. This was not a mere lack of proof at the first

instance of filing. It was a demand for 24 percent interest—unavailable under the

law—from a debtor whom it thought would never fight back.

{¶ 84} Finally, FRIC lacked more than just a paper trail. FRIC in this case

attempted to collect an interest rate that it could not legally collect; only a written

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contract could except FRIC from the statutory rate of interest under R.C.

1343.03(A). The existence of a written contract setting forth the interest rate is an

essential element of its claim.

{¶ 85} There is a clear difference between asserting claims that are

recoverable under the law and those that are not. In Foster v. D.B.S. Collection

Agency, 463 F.Supp.2d 783, 802 (S.D.Ohio 2006), the court found a violation of

the FDCPA when a creditor prayed for attorney’s fees that were unobtainable

pursuant to an Ohio statute. The Foster court reasoned that “from the perspective

of the ‘least sophisticated consumer,’ ” the prayer for such relief “constitute[d] an

absolute entitlement to attorney fees, even though such fees are not recoverable

under Ohio law.” Id.

{¶ 86} In this case, from the perspective of the least sophisticated consumer,

the prayer for relief claimed entitlement to a rate of interest that was unavailable

under the law to FRIC. We affirm the appellate court’s decision that Taylor Jarvis

established a prima facie case against FRIC and Cheek under the FDCPA and the

OCSPA on this issue.

Liability Under the OCSPA

{¶ 87} The court below did not address head-on the question of the

applicability of the OCSPA to debt collectors and their attorneys, but instead simply

held that Taylor Jarvis had presented viable claims under both the FDCPA and the

OCSPA. FRIC and Cheek rely on definitions in R.C. 1345.01(C) and 1345.01(A)

to assert that the OCSPA “does not apply to bank assignees and their collection

attorneys because there is no ‘consumer transaction’ or ‘supplier.’ ” We reject their

arguments in this regard and agree with Taylor Jarvis’s position that debt collectors,

including attorneys engaged in debt collections, can be held liable under the

OCSPA.

{¶ 88} Both the FDCPA and the OCSPA are remedial statutes, intended to

reach a broad range of conduct. To state a claim under the FDCPA, a debtor must

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establish that a party violated one of the substantive provisions of the act while

engaging in debt-collection activity. Glazer v. Chase Home Fin., L.L.C., 704 F.3d

453, 459-460 (6th Cir.2013). 15 U.S.C. 1692e forbids “false, deceptive, or

misleading representation[s] or means in connection with the collection of any

debt.” 15 U.S.C. 1692e(2)(A) prohibits a party from making a “false

representation” of the “amount” of any debt. And 15 U.S.C. 1692e(10) prohibits a

party from using “false representation or deceptive means to collect or attempt to

collect any debt or to obtain information concerning a consumer.” For a statement

to be actionable, however, it must be “more than just misleading—it ‘must be

materially false or misleading to violate Section 1692e.’ ” (Emphasis sic.) Clark

v. Lender Processing Servs., 562 Fed.Appx. 460, 466 (6th Cir.2014), quoting

Wallace v. Washington Mut. Bank, F.A., 683 F.3d 323, 326 (6th Cir.2012). “The

materiality standard * * * means that in addition to being technically false, a

statement would tend to mislead or confuse the reasonable unsophisticated

consumer.” Id., citing Wallace at 326-327.

{¶ 89} The OCSPA is similar:

[R.C.] Section 1345.02(A) provides that “[n]o supplier shall

commit an unfair or deceptive act or practice in connection with a

consumer transaction. Such an unfair or deceptive act or practice by

a supplier violates this section whether it occurs before, during, or

after the transaction.” Section 1345.03(A) provides that “[n]o

supplier shall commit an unconscionable act or practice in

connection with a consumer transaction. Such an unconscionable

act or practice by a supplier violates this section whether it occurs

before, during, or after the transaction.” Although the OCSPA does

not expressly address debt collection practices, Ohio courts have

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applied the OCSPA to such practices. See Liggins v. May Co., 44

Ohio Misc. 81, 337 N.E.2d 816 (Ohio C.P. Cuyahoga County 1975).

Lewis v. ACB Business Servs., Inc., 135 F.3d 389, 403 (6th Cir.1998), fn. 11.

{¶ 90} The interrelationship between the FDCPA and the OCSPA is

established:

“[V]arious violations of the FDCPA constitute a violation of the

CSPA. * * * [T]he purpose of both acts is to prohibit both unfair

and deceptive acts and this court holds that any violation of any one

of the enumerated sections of the FDCPA is necessarily an unfair

and deceptive act or practice in violation of R.C. § 1345.02 and/or

§ 1345.03.”

Kelly v. Montgomery Lynch & Assocs., Inc., N.D.Ohio No. 1:07-CV-919, 2008 WL

1775251, *11 (Apr. 15, 2008), quoting Becker v. Montgomery, Lynch, N.D.Ohio

No. Civ.A. 1:02CV 874, 2003 WL 23335929, *2 (Feb. 26, 2003). But see Slorp v.

Lerner, Sampson & Rothfuss, 587 Fed.Appx. 249, 260-261 (6th Cir.2014)

(cautioning that some conduct that violates the FDCPA may not necessarily

constitute a violation of the OCSPA). Thus, it is helpful to further examine the

FDCPA as we consider the application of the OCSPA in the context of debt

collection by debt buyers and attorneys.

{¶ 91} Under the FDCPA, a debt collector is “any person who uses any

instrumentality of interstate commerce or the mails in any business the principal

purpose of which is the collection of any debts, or who regularly collects or attempts

to collect, directly or indirectly, debts owed or due or asserted to be owed or due

another.” 15 U.S.C. 1692a(6). And in Heintz v. Jenkins, 514 U.S. at 299, 115 S.Ct.

1489, 131 L.Ed.2d 395, the United States Supreme Court made clear that the

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January Term, 2016

FDCPA applies to “attorneys who ‘regularly’ engage in consumer-debt-collection

activity, even when that activity consists of litigation.” See also Beler v. Blatt,

Hasenmiller, Leibsker & Moore, L.L.C., 480 F.3d 470, 472 (7th Cir.2007).

{¶ 92} Typically, to determine the applicability of the FDCPA to a

particular attorney or law firm, the salient question is whether the attorney or law

firm regularly engages in consumer-debt-collection activity within the meaning of

the act. In answering that question, the focus is on the “regularity” of the collection

activities by the attorney and his or her firm.

{¶ 93} As the Sixth Circuit recognizes, “[o]rdinary interpretations of the

words ‘regular’ and ‘regularly’ fail to delineate the amount of debt collection

activity required * * * to find an attorney a ‘debt collector’ under the FDCPA.”

Schroyer v. Frankel, 197 F.3d 1170, 1174 (6th Cir.1999). The Sixth Circuit holds

that “for a court to find that an attorney or law firm ‘regularly’ collects debts for

purposes of the FDCPA, a plaintiff must show that the attorney or law firm collects

debts as a matter of course for its clients or for some clients, or collects debts as a

substantial, but not principal, part of his or its general law practice.” Id. at 1176.

{¶ 94} Despite the Supreme Court’s holding in Heintz and other reported

precedent that makes clear that the FDCPA applies to lawyers and law firms who

regularly engage in debt collection as well as to other debt collectors, Cheek and

FRIC assert that they are not subject to liability under the OCSPA because they are

not “suppliers” within the meaning of R.C. 1345.01(C) and because no “consumer

transaction” within the meaning of R.C. 1345.01(A) occurred.

{¶ 95} We have little trouble concluding that Cheek and FRIC are

“suppliers.” As we explained in Anderson v. Barclay’s Capital Real Estate, Inc.,

136 Ohio St.3d 31, 2013-Ohio-1933, 989 N.E.2d 997:

“ ‘Supplier’ means a seller, lessor, assignor, franchisor, or

other person engaged in the business of effecting or soliciting

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consumer transactions, whether or not the person deals directly with

the consumer.” R.C. 1345.01(C). The terms “effecting” and

“soliciting” are not defined by the statute, so we give the terms their

plain and ordinary meanings.

“Effect” is defined as “[t]o bring about; to make happen.”

Black’s Law Dictionary at 592 [9th Ed.2009]. “Solicitation” is

defined as “[t]he act or an instance of requesting or seeking to obtain

something; a request or petition.” Black’s at 1520.

Id. at ¶ 29-30.

{¶ 96} Both FRIC and Cheek solicited Taylor Jarvis in an effort to effect

the recovery of her debt or the resolution of it. They are suppliers within the

meaning of the OCSPA. We now turn to the question of whether a “consumer

transaction” occurred.

{¶ 97} For purposes of the OCSPA, the term “consumer transaction” is

defined to mean

a sale, lease, assignment, award by chance, or other transfer of an

item of goods, a service, a franchise, or an intangible, to an

individual for purposes that are primarily personal, family, or

household, or solicitation to supply any of these things. “Consumer

transaction” does not include transactions between persons, defined

in sections 4905.03 and 5725.01 [financial institution defined] of the

Revised Code, and their customers, except for transactions

involving a loan made pursuant to sections 1321.35 to 1321.48 of

the Revised Code and transactions in connection with residential

mortgages between loan officers, mortgage brokers, or nonbank

mortgage lenders and their customers; transactions involving a

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January Term, 2016

home construction service contract as defined in section 4722.01 of

the Revised Code; transactions between certified public accountants

or public accountants and their clients; transactions between

attorneys, physicians, or dentists and their clients or patients; and

transactions between veterinarians and their patients that pertain to

medical treatment but not ancillary services.

R.C. 1345.01(A).

{¶ 98} Relying on this court’s decision in Reagans v. MountainHigh

Coachworks, Inc., 117 Ohio St.3d 22, 2008-Ohio-271, 881 N.E.2d 245, Cheek

asserts that “the definition of ‘consumer transaction’ explicitly and specifically

excludes transactions between financial institutions and their customers,” and that

the exemption extends to “bank assignees,” which Cheek contends includes both

FRIC and Cheek. We disagree.

{¶ 99} Reagans is wholly distinguishable from this case. That case

involved litigation brought by plaintiffs against the seller and the manufacturer of

their motor home, which the plaintiffs claimed was defective. The plaintiffs sought

recovery under various causes of action, including alleging a violation of the

OCSPA. Id. at ¶ 1. The plaintiffs also alleged that the bank that loaned them the

money for the purchase was derivatively liable for their claims against the seller.

Id.

{¶ 100} In addressing that claim, we held that a bank cannot be held

derivatively liable pursuant to a Federal Trade Commission (“FTC”) regulation or

rule for an award of treble damages and attorney’s fees against a seller of goods

under the OCSPA. Id. at ¶ 2-3. Our analysis was driven, in part, by the recognition

that transactions between financial institutions and their customers are exempted

from the definition of a “consumer transaction” within the meaning of R.C.

1345.01(A) of the OCSPA. Id. at ¶ 33. See also Jackson v. Sunnyside Toyota, Inc.,

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175 Ohio App.3d 370, 2008-Ohio-687, 887 N.E.2d 370, ¶ 7 (8th Dist.)

(“ ‘Consumer transactions’ do not include transactions between ‘financial

institutions’ and their customers. See R.C. 1345.01(A) and 5725.01(A)”). That

exemption shielded the bank from direct liability and permitted derivative liability

only to the extent that the FTC required derivative liability. Reagans at ¶ 33.

{¶ 101} Here, Cheek asserts that because Chase (which we will presume for

purposes of this case to be an exempt “financial institution” within the meaning of

the OCSPA) would be shielded from OCSPA liability for its own attempts to collect

the debt from Taylor Jarvis, Cheek is similarly exempt because it was attempting

to collect the debt on behalf of FRIC, which purchased the debt that had been owed

to Chase. We do not agree.

{¶ 102} Neither FRIC nor Cheek is a financial institution within the

meaning of the OCSPA. As amicus curiae the state of Ohio correctly argues, the

exemption for banks and financial institutions applies only to transactions with

certain specific entities, namely, banks and financial institutions as defined by R.C.

1345.01(A) and 5725.01. Cheek fails to establish that those statutes, or any other

statutes in the Revised Code, confer an exemption on FRIC, a debt buyer that

purchased a debt that originated in a transaction involving an exempt financial

institution, or on Cheek merely because it contracted with and represented a debt

buyer. And we reject any notion that a debt collector and its attorneys can be

permitted “derivative use” of the financial-institution exemption in the OCSPA

based solely on the fact that the debt at issue originated between a financial

institution and a consumer. See Foster, 463 F.Supp.2d at 783, fn. 42 (rejecting a

nonphysician debt collector and its attorney’s invocation of the exemption in the

OCSPA that applies to physicians regarding their attempts to collect debts arising

from patient-physician health-care transactions); Kline v. Mtge. Electronic

Registration Sys., Inc., S.D.Ohio No. 3:08cv408, 2010 WL 1267809, *5 (Mar. 30,

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January Term, 2016

2010) (holding that the financial-institution exemption in the OCSPA applies to

national banks and not to subsidiaries of those banks).

{¶ 103} Cheek additionally asserts that our decision in Anderson, 136 Ohio

St.3d 31, 2013-Ohio-1933, 989 N.E.2d 997, supports that no “consumer

transaction” on which to base an OCSPA action occurred in this case. FRIC

presents arguments on this point that also rely heavily on Anderson. But Anderson

is inapposite here.

{¶ 104} Anderson arose from interactions between mortgage-service

providers and homeowners. We held that the OCSPA did not apply to the

mortgage-service providers for three key reasons not presented here.

{¶ 105} First, in Anderson we held that because “[m]ortgage servicing is a

contractual agreement between the mortgage servicer and the financial institution

that owns both the note and mortgage,” there was no “consumer” transaction within

the meaning of the OCSPA. Id. at ¶ 12-13. Second, we recognized that land

transactions are frequently regulated by specialized legislation and thus are

excluded from the Uniform Consumer Sales Practices Act, on which the OCSPA is

modeled. Id. at ¶ 18. And third, we found that that the legislative history of the

OCSPA amply demonstrated that the General Assembly did not intend for the

OCSPA to apply to mortgage-service providers. Id. at ¶ 20-25.

{¶ 106} None of the factors that were critical to our analysis in Anderson is

present here. We therefore reject Cheek’s and FRIC’s arguments that debt

collectors and their attorneys are exempt from the OCSPA.

CONCLUSION

{¶ 107} We hold that Ohio’s borrowing statute applies in this case and that

therefore, Delaware’s statute of limitations applied to FRIC’s debt-collection action

against Taylor Jarvis. We further hold that FRIC’s complaint against Taylor Jarvis

was time-barred and that the filing of a time-barred collection action may form the

basis of violations under the FDCPA and the OCSPA. We also hold that FRIC’s

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claim in its complaint for interest that is unavailable by law was a demand made

upon Taylor Jarvis rather than an aspirational request to the trial court and thus can

be the basis of an actionable claim under the FDCPA and the OCSPA. We remand

the case to the trial court for a determination of those causes of action, including a

consideration of whether the FDCPA’s bona fide error defense is applicable, and

for a determination of the cause of action for abuse of process. Finally, we hold

that debt buyers collecting on credit-card debt and their attorneys are subject to the

OCSPA.

{¶ 108} Accordingly, we affirm the judgment of the court of appeals that

reversed the trial court’s granting of FRIC’s and Cheek’s motions for summary

judgment and remand the cause to the trial court for further proceedings consistent

with this opinion.

Judgment affirmed

and cause remanded.

O’NEILL, J., concurs.

LANZINGER, J., concurs in judgment only.

KENNEDY, J., concurs in part and concurs in the judgment in an opinion that

O’DONNELL, J., joins.

O’CONNOR, C.J., dissents in an opinion that FRENCH, J., joins.

_________________

KENNEDY, J., concurring.

{¶ 109} I agree with most of the opinion of the court. While I agree with

the ultimate conclusion that the action brought against Sandra Taylor Jarvis was

untimely, I disagree with the analysis regarding when the cause of action against

her accrued. Because a credit-card account is an account founded upon contract,

with a single and indivisible liability arising from individual transactions that are

connected as a series, the issue of when the cause of action accrued is resolved by

case law regarding an action on an account. The statute of limitations for an action

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January Term, 2016

on an account begins to run on the date of the last item appearing on the account.

Applying these principles to the facts before us, I would hold that the cause of action

accrued on June 28, 2006, the date Taylor Jarvis made her last payment on the

credit-card account.

{¶ 110} The lead opinion reasons that when a credit-card debtor fails to

make an agreed-to monthly minimum payment when it becomes due and owing, a

cause of action accrues for statute-of-limitations purposes. Lead opinion at ¶ 50,

citing Dudek v. Thomas & Thomas Attorneys & Counselors at Law, L.L.C., 702

F.Supp.2d 826, 839 (N.D.Ohio 2010); Citibank, N.A. v. Hyslop, 10th Dist. Franklin

No. 12AP-885, 2014-Ohio-844, ¶ 16-17; Discover Bank v. Heinz, 10th Dist.

Franklin No. 08AP-1001, 2009-Ohio-2850, ¶ 17; Discover Bank v. Poling, 10th

Dist. Franklin No. 04AP-1117, 2005-Ohio-1543, ¶ 18. However, none of the cases

relied upon by the lead opinion engaged in any analysis on the issue of accrual, and

none of them concluded that the due date of the first missed monthly minimum

payment is the date on which a cause of action accrues.

{¶ 111} In Dudek, there was no dispute as to the date that the creditor’s

breach-of-contract claim accrued against the debtor. Dudek at 839. The court

accepted the undisputed date and did not engage in any independent analysis to

resolve the issue of when the cause of action accrued. Id.

{¶ 112} Hyslop is also devoid of any discussion of when the cause of action

accrued. Instead, the Hyslop court noted that the credit-card-account billing

statements in evidence reflected activity beginning September 30, 2009, and

continuing through September 5, 2011. Hyslop at ¶ 12. An employee of the bank

had stated in an affidavit that the debtor was in default for his failure to make

“proper payments” on the account. Id. at ¶ 13. The appellate court did not address

any issue regarding the statute of limitations and agreed with the trial court that the

bank had established that the debtor had failed to make required payments and that

the account was in default. Id. at ¶ 16-20.

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{¶ 113} The analysis in Poling focused on whether the bank had proved a

breach-of-contract claim for the debtor’s alleged failure to make payments on a

credit-card account. Poling, 2005-Ohio-1543, at ¶ 17. The court concluded that

the bank had established a breach of contract, and the court stated that the

“defendant repeatedly failed to make the minimum monthly payment due on the

account, and, therefore, was in default.” Id. at ¶ 18. The court never discussed the

accrual date for the cause of action.

{¶ 114} In Heinz, no issue was raised regarding the date that the cause of

action accrued. The court noted that after applying for and receiving the credit card,

the debtor made a balance transfer, purchased some goods and services with the

card, and “made payments on the account until November 2007, when she sent a

letter to [the creditor] contending she was not required to pay any amounts due on

the account.” Heinz, 2009-Ohio-2850, at ¶ 4. In concluding that the debtor had

failed to demonstrate a meritorious defense to the creditor’s breach-of-contract

claim, the Heinz court noted that after November 2007, the debtor “failed to make

any required minimum monthly payments due on her * * * card account and

therefore was in ‘default.’ ” Id. at ¶ 17.

{¶ 115} The facts currently before this court are also different from the

underlying facts in Dudek, Hyslop, Heinz, and Poling. While Taylor Jarvis failed

to make the scheduled minimum monthly payment due in January 2005, Chase did

not inform her that it had suspended her charging privileges until it sent her the

billing statement for the payment due on May 2, 2005. Taylor Jarvis also continued

to make a number of less-than-minimum monthly payments until June 28, 2006.

There are no indications in any of the aforementioned cases that the creditors had

continued to extend credit after the debtors had failed to make less-than-minimum

monthly payments or that the debtors made less-than-minimum payments on the

accounts that were accepted by the creditors after the debtors had failed to make a

minimum payment due. Based upon these factual differences and the lack of a

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discussion of the date the cause of action accrued in any of the cases the lead

opinion cites, the cases relied upon by the lead opinion are unavailing.

{¶ 116} Rather, case law pertaining to an action on an account guides the

determination of when the cause of action accrues for statute-of-limitations

purposes. An action on an account is founded upon contract, Arthur v. Parenteau,

102 Ohio App.3d 302, 304, 657 N.E.2d 284 (3d Dist.1995), and “is appropriate

where the parties have conducted a series of transactions for which a balance

remains to be paid,” Blanchester Lumber & Supply, Inc. v. Coleman, 69 Ohio

App.3d 263, 265, 590 N.E.2d 770 (12th Dist.1990). Courts in Ohio recognize a

creditor’s ability to pursue an action on an account for a cardholder’s default on a

credit-card account. See Ohio Receivables, L.L.C. v. Dallariva, 10th Dist. Franklin

No. 11AP-951, 2012-Ohio-3165, ¶ 30-34; Citibank, N.A. v. Eckmeyer, 11th Dist.

Portage No. 2008-P-0069, 2009-Ohio-2435, ¶ 15. Further, the General Assembly

has defined “account” to include “a right to payment of a monetary obligation,

whether or not earned by performance, * * * arising out of the use of a credit or

charge card or information contained on or for use with the card.” R.C.

1309.102(A)(2)(a)(vii).

{¶ 117} An Indiana court of appeals engaged in a thorough analysis of a

credit-card account that is instructive here. Smither v. Asset Acceptance, L.L.C.,

919 N.E.2d 1153, 1160 (Ind.App.2010). The Smither court distinguished credit-

card accounts from promissory notes and installment loans, which have a “total

amount of indebtedness and a defined schedule of repayment, including precise

dates for payment and the amount of each payment until the debt is fully repaid,

typically * * * included in the loan document from the outset.” Id. at 1159. In

contrast,

the precise amount of debt that a consumer may undertake [on a

credit-card account] is unknown at the outset and fluctuates,

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depending on how the card is used. * * * [T]he creditor sends

monthly statements to the debtor indicating the amount of that

month’s required minimum payment, which may vary depending

upon how much the card has been used, whether the creditor has

imposed fees of different kinds, whether the interest rate for the card

is variable, and how previous payments have been made.

Id.

{¶ 118} The Smither court concluded that a credit-card account is analogous

to an “open account,” which

“results where the parties intend that the individual transactions in

the account be considered as a connected series, rather than as

independent of each other, subject to a shifting balance as additional

debits and credits are made, until one of the parties wishes to settle

and close the account, and where there is but one single and

indivisible liability arising from such series of related and reciprocal

debits and credits.”

Id., quoting 1 American Jurisprudence 2d, Accounts and Accounting, Section 4, at

263-264 (2005) (footnotes omitted).

{¶ 119} The Smither court held that a credit-card debt is “an open account

debt for statute of limitations purposes.” 919 N.E.2d at 1160. It determined that

the statute of limitations for such an account begins to run on the date of the last

activity on the account. Id. (“Whether we consider the statute of limitations to have

begun running on the date of Smither’s last payment or the next payment due date

thereafter, Asset’s lawsuit filed on May 30, 2006, was more than six years after

both dates”).

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{¶ 120} Turning to the current case, the last activity on the account was a

$50 payment by Taylor Jarvis on June 28, 2006, which qualifies as the last item on

the account. Taylor Jarvis tendered the payment, and Chase accepted it, with the

understanding that Chase would apply the payment to adjust the balance due on the

account. Therefore, I would find that the cause of action against Taylor Jarvis

accrued, and the statute of limitations began to run, on June 28, 2006. As such, the

cause of action accrued after April 7, 2005, the effective date of the borrowing

statute, R.C. 2305.03(B), and that statute applies in the circumstances here,

meaning that Delaware’s statute of limitations controls and that the suit against

Taylor Jarvis was untimely. It is therefore not necessary to determine, as the lead

opinion does, whether R.C. 2305.03(B) applies to causes of action that accrued but

were not commenced before its effective date.

{¶ 121} Even if the analysis focusing on Taylor Jarvis’s last payment on the

account is rejected, the lead opinion’s conclusion that the cause of action accrued

when Taylor Jarvis failed to make a minimum monthly payment is problematic.

Chase obviously did not conclude that this failure rendered the parties’ credit

relationship irreparable. Instead, Chase continued to extend charging privileges to

Taylor Jarvis. It was not until Chase terminated Taylor Jarvis’s charging privileges

that the credit relationship between the parties came to end. The First District Court

of Appeal of California has concluded that the relevant date for determining when

a cause of action accrues for statute-of-limitations purposes on an open account is

“the date the debt becomes settled; i.e., the date the relationship between the parties

has come to an end other than for purposes of paying amounts due or past due.”

R.N.C., Inc. v. Tsegeletos, 231 Cal.App.3d 967, 975, 283 Cal.Rptr. 48 (1991).

Applying this alternative analysis, the cause of action against Taylor Jarvis accrued,

and the statute of limitations began to run, at the very earliest on April 8, 2005, the

day after the last day of the billing cycle that closed before Chase terminated Taylor

Jarvis’s charging privileges. As such, the borrowing statute applies under this

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analysis as well, Delaware’s statute of limitations controls, and the suit against

Taylor Jarvis was untimely. And, again, it is therefore not necessary to determine,

as the lead opinion does, whether R.C. 2305.03(B) applies to causes of action that

accrued but were not commenced before its effective date.

{¶ 122} Accordingly, I respectfully concur.

O’DONNELL, J., concurs in the foregoing opinion.

_________________

O’CONNOR, C.J., dissenting.

{¶ 123} This appeal illustrates the nexus of complex financial, social, and

legal phenomena that have arisen in the wake of what is commonly called the Great

Recession (generally considered to have been most severe in this country from

December 2007 through June 2009), which left many Americans with decreased

net worth and engendered the longest periods of unemployment since the World

War II era. See generally Warner, What the Great Recession Has Done to Family

Life, New York Times Magazine (Aug. 6, 2010), available at

http://www.nytimes.com/2010/08/08/magazine/08FOB-wwln-

t.html?_r=2&ref=magazine& (accessed May 12, 2016); see also Jobless Debt Is

Heavy, Columbus Dispatch (Aug. 13, 2014), available at

http://www.dispatch.com/content/stories/editorials/2014/08/13/jobless-debt-is-

heavy.html (accessed May 12, 2016). Not surprisingly, many Americans incurred

debts that they were unable—or perhaps unwilling—to pay. The decedent in this

case appears to be one such American, but the record before us does not establish

why her debts were not paid.2

2

“[A]lthough ‘de mortuis nil nisi bonum,’ be a maxim of our profession, the memory of the deceased

has not been spared.” Pierson v. Post, 3 Caines 175, 180, 2 Am.Dec. 264, 1805 WL 781 (N.Y.1805)

(Livingston, J., dissenting) (using a Latin phrase that has been translated as “(say) nothing but good

of the dead,” Webster’s New World Dictionary 367 (3d College Ed.1988)). As the majority notes,

the decedent, Sandra Taylor Jarvis, died during the pendency of this appeal. She may have been the

victim of poor health, but we cannot assume that her ill health was the reason she failed to make

payments on the credit-card account at issue in this case or that she was the gullible victim of debt

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{¶ 124} The amounts of unpaid debt in the United States are staggering. In

2008, credit card lenders “wrote off” about $45 billion in bad debt. Dash and

Martin, Banks Brace for Credit Card Write-Offs, New York Times, May 10, 2009,

available at http://www.nytimes.com/2009/05/11/business/11credit.html?_r=0

(accessed May 19, 2016). As troubling as that number is, financial institutions

charged off about $20 billion each quarter from early 2009 through early 2010.

Hauser, Bank Losses Lead to Drop in Credit Card Debt, New York Times, Sept.

24, 2010, available at http://www.nytimes.com/2010/09/25/business/25credit.html

(accessed May 19, 2016).

{¶ 125} Terms such as “write-off” and “charge-off” are based on

accounting principles and are used to describe the situation in which a creditor has

determined that a debt is unlikely to be paid, usually after 180 days without

payment, and “charges off” the account receivable as uncollectable. Fox, Do We

Have A Debt Collection Crisis? Some Cautionary Tales of Debt Collection in

Indiana, 24 Loy.Consumer L.Rev. 355, 358 (2012), fn. 16; Haneman, The Ethical

Exploitation of the Unrepresented Consumer, 73 Mo.L.Rev. 707, 713 (2008). The

real debt, however, does not magically disappear. The companies owed the debt

suffer the loss of that money, and ultimately they shift the burden of paying the debt

to other credit-card holders through higher interest rates and fees. Fox at 362. And

there are plenty of credit-card holders bearing that burden. In 2015, the average

American household carried about $5,700 in credit-card debt; about 38 percent of

households carried an average debt that was more than $15,000. Gabler, The Secret

collectors. The decedent stated in an affidavit that appears in the record of this case that she worked

in a supervisory capacity in a bankruptcy trustee’s office for more than a decade and affirmatively

stated that she had a considerable degree of familiarity with the law and legal processes. And

although she alleged that she became disabled after suffering a serious stroke on February 5, 2010,

that date was well after the cause of action accrued in this case, as well as in others in which she

apparently defaulted on credit-card debt accumulated on other credit cards. See, e.g., Capital One

Bank v. Jarvis, Cuyahoga Falls M.C. No. 2004CVF03902 (Feb. 8, 2005) (entering judgment of

$12,495.27 plus interest).

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Shame of Middle-Class Americans, The Atlantic (May 2016), available at

http://www.theatlantic.com/magazine/archive/2016/05/my-secret-shame/476415/

(accessed May 19, 2016). Although the number of people holding credit-card debt

has been decreasing over the last few years, notably, the average debt for those

households that do carry a balance has been on the rise. Id. In a sense then, credit-

card companies are charging those people for both the costs they incur as they

attempt to pay off their debts and the costs that others incurred but were unable to

pay.

{¶ 126} Companies also engage in the sometimes unsavory, but now

common, phenomenon of “debt sales” in which a creditor sells an individual’s debt,

for pennies on the dollar, to a private entity that then attempts to collect the debt,

often through the court process. And the collection efforts include efforts to collect

“charged-off” debts:

To recoup a portion of its lost investment, an originating

lender may sell a charged-off consumer loan to a Debt Buyer,

usually as part of a portfolio of delinquent consumer loans, for a

fraction of the total amount owed to the originating lender. * * *

Once a Debt Buyer has purchased a portfolio of defaulted consumer

loans, it may engage in collection efforts (or hire a third-party to do

so), which may include locating borrowers, determining whether

borrowers are in bankruptcy, commencing legal proceedings, or

“otherwise encouraging” payment of all or a portion of the

delinquency.

Debt Buyers’ Assn. v. Snow, 481 F.Supp.2d 1, 4 (D.D.C.2006), quoting a

memorandum filed in the case.

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{¶ 127} It is undisputable that some debt collectors, whether first party or

third party, act unlawfully and unconscionably in the process of attempting to

collect the debt. The majority raises valid criticisms of those debt purchasers who

“reap staggering profits by methodically cleaning financial carcasses left

abandoned” years ago. Haneman, 73 Mo.L.Rev. at 713.

{¶ 128} But the majority’s characterization of the debt market ignores the

reality that there would be no debt to purchase if there had not been so many

defaults on debts. In fact, there is plenty of blame to go around.

{¶ 129} The Federal Trade Commission’s (“FTC”) recent report of the

results of a landmark study of the debt-purchasing industry, upon which the

majority relies heavily, analyzed more than 5,000 debt portfolios purchased by

large debt buyers in a three-year study period ending in June 2009. The Structure

and Practices of the Debt Buying Industry ii, A-1 (Jan. 2013), available at

http://www.ftc.gov/sites/default/files/documents/reports/structure-and-practices-

debt-buying-industry/debtbuyingreport.pdf (accessed May 19, 2016) (“Structure

and Practices”). Those portfolios contained nearly 90 million consumer accounts

that had a face value of $143 billion. Id. at ii. Sixty-two percent of that debt was

credit-card debt. Id.

{¶ 130} The study makes clear that information received by debt

purchasers, including information about whether the consumer had ever disputed

the debt, is deficient in many ways. Id. at ii-iii. Yet only 3.2 percent of the

consumers whose debt was purchased disputed the debts, and the debts in more

than half of those cases were verified by the debt buyer. Id. at iv. Debt-purchasing

companies resold only 2.9 percent of their disputed debts and only 0.8 percent of

their unverified disputed debts. Id. Thus, although some debt buyers undoubtedly

bought disputed debts, the vast majority of them did not.

{¶ 131} Similarly, although some debt buyers involved in the study

purchased and attempted to collect debts that were more than six years old, the FTC

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also found that “most of the debt that [debt buyers] purchased did not appear to be

either old or beyond the statute of limitations.” Id. at v.

{¶ 132} And, for better or worse, the FTC acknowledged that debt buying

can reduce creditors’ losses and thereby allow for more credit to be provided to

consumers at better rates. Id. at i.

{¶ 133} Much more could be said about the business of debt buying, but for

now, it suffices for two things to be made clear. First, the debt market involves

both the bad behaviors of irresponsible consumers and the tragedies of responsible

ones. Second, despite the majority’s recitation of the misdeeds of debt collectors

and its broad-brush imputation of those misdeeds to the industry as a whole, nothing

in the record before us establishes that these appellants—Cheek Law Offices,

L.L.C., and attorney Parri Hockenberry (collectively “Cheek”), First Resolution

Investment Corporation (“FRIC”), and First Resolution Management

Corporation—necessarily acted wrongly in seeking to collect an established debt.

{¶ 134} I understand the majority’s indignation with perceived injustices,

but I cannot join its analysis, which is driven by the result it seeks to achieve rather

than thoughtful considerations of precedent and public policy. And therein lies the

rub: the majority’s grandiose statements and holdings, though intended to protect

Ohio’s consumers, portend great harm to them and to the vitally important

plaintiffs’ bar—the holdings will inevitably be applied as precedent in future cases

in ways that will not be consumer friendly.

{¶ 135} I dissent.

{¶ 136} The proper analysis of the claims in this case should lead to the

conclusion that Ohio law controls both the substantive and procedural aspects

involved. I would hold that under Ohio law, the complaint was timely filed and

therefore that appellants did not violate the Ohio Consumer Sales Practices Act

(“OCSPA”), R.C. 1345.01 et seq., or the federal Fair Debt Collection Practices Act

(“FDCPA”), 15 U.S.C. 1692 et seq., by bringing a time-barred suit against the

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decedent. I would also hold that appellants did not violate the OCSPA or the

FDCPA by requesting the rate of interest in the prayer for relief in the complaint

against the decedent that they sought. I would reverse the judgment of the court of

appeals and enter judgment in favor of appellants, as the trial court did.

ANALYSIS

{¶ 137} As the trial court recognized early in these proceedings, the

outcome in this case turns on whether the procedural and substantive law of Ohio

or another state controls.

Ohio Procedural Law Controls

Ohio’s procedural law on statutes of limitations

{¶ 138} The key to the majority’s holding in favor of the decedent’s estate

is that Ohio’s borrowing statute, R.C. 2305.05, applies in this case. It does not.

{¶ 139} It is well settled in Ohio that the forum state’s statutes of limitations

are to be applied in the forum, which, here, is Ohio. “The matter of the statute of

limitations being a question of remedy, it is universally considered to be governed

by the law of the forum.” McCormick v. Taft, 61 Ohio App. 200, 201, 22 N.E.2d

510 (1st Dist.1938). Because the forum for the underlying suit is a court in Ohio,

Ohio law controls the statute-of-limitations question.3 See, e.g., Kerper v. Wood,

3

Because substantive law is not at issue, neither Gries Sports Ents., Inc. v. Modell, 15 Ohio St.3d

284, 473 N.E.2d 807 (1984), nor 1 Restatement of the Law 2d, Conflict of Laws, Section 188 (1971),

applies to the statute-of-limitations question in this case, Resner v. Owners Ins. Co., 3d Dist. Allen

No. CA 2001 0091, 2002 WL 236970, *1 (Feb. 14, 2002), and the appellate court’s analysis of the

issue was incorrect. Instead, 1 Restatement of the Law 2d, Conflict of Laws, Section 142(2) (1971),

governs the resolution of conflicts over which state’s statute of limitations applies. Unifund CCR

Partners Assignee of Palisades Collection, L.L.C. v. Childs, 2d Dist. Montgomery No. 23161, 2010-

Ohio-746, ¶ 15; see also Lewis v. Steinreich, 73 Ohio St.3d 299, 303, 652 N.E.2d 981 (1995), citing

Morgan v. Biro Mfg. Co., Inc., 15 Ohio St.3d 339, 474 N.E.2d 286, 288-289 (1984). As the Sixth

Circuit has explained:

When a conflict arises between two states’ statutes of limitations, the Restatement

provides: [“]An action will be maintained if it is not barred by the statute of

limitations of the forum, even though it would be barred by the statute of

limitations of another state.[”] Restatement (Second) of Conflict of Laws §

142(2). Section 142(2) thus requires Ohio courts to apply Ohio’s statute of

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48 Ohio St. 613, 622, 29 N.E. 501 (1891) (“Statutes of limitation relate to the

remedy, and are, and must be, governed by the law of the forum; for it is conceded

that a court which has power to say when its doors shall be opened has also power

to say when they shall be closed”). See also Alropa Corp. v. Kirchwehm, 138 Ohio

St. 30, 33 N.E.2d 655 (1941), paragraph one of the syllabus (“The validity and

interpretation of a contract are governed by the laws of the state where such contract

is made or is to be performed; but the remedies are governed by the laws of the

state where the suit is brought. The limitation of actions relates to the remedy”);

Unifund CCR Partners Assignee of Palisades Collection, L.L.C. v. Childs, 2d Dist.

Montgomery No. 23161, 2010-Ohio-746, ¶ 14 (“ ‘In choice-of-law situations, the

procedural laws of the forum state, including applicable statutes of limitations, are

generally applied’ ”), quoting Lawson v. Valve-Trol Co., 81 Ohio App.3d 1, 4, 610

N.E.2d 425 (9th Dist.1991), citing Howard v. Allen, 30 Ohio St.2d 130, 283 N.E.2d

167 (1972); D.A.N. Joint Venture III, L.P. v. Armstrong, 11th Dist. Lake No. 2006-

L-089, 2007-Ohio-898, ¶ 28 (Ohio courts have consistently and uniformly held that

limitations of actions are fixed by the laws of the state in which suit is filed); Combs

v. Internatl. Ins. Co., 354 F.3d 568, 577 (6th Cir.2004) (a federal court sitting in

limitations to breach of contract actions brought in Ohio, even if the action would

be time-barred in another state. See Males v. W.E. Gates & Associates, 29 Ohio

Misc.2d 13, 504 N.E.2d 494, 494-95 (Ohio Com.Pl.1985) (applying Ohio’s

fifteen-year statute of limitations to a breach of contract action that would have

been barred by Virginia’s five-year statute); cf. Mahalsky v. Salem Tool Co., 461

F.2d 581, 586 (6th Cir.1972) (holding this rule does not deny full faith and credit);

Mackey v. Judy’s Foods, Inc., 867 F.2d 325, 328-29 (6th Cir.1989) (affirming the

district court’s application of a similar rule in Tennessee).

Cole v. Mileti, 133 F.3d 433, 437 (6th Cir.1998), citing Charash v. Oberlin College, 14 F.3d 291,

299 (6th Cir.1994). In so concluding, I recognize that Section 142 of the Restatement was revised

in 1988, see 1 Restatement of the Law 2d, Conflict of Laws, Section 142 (1988), but the courts of

our state have declined to adopt the revised version. See Dudek v. Thomas & Thomas Attorneys &

Counselors at Law, L.L.C., 702 F.Supp.2d 826, 834 (N.D.Ohio 2010), fn. 8 (stating that Ohio courts

have continued to apply the original version of Section 142). I agree that the 1971 version of Section

142 is applicable here.

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diversity must apply the procedural law of the forum state, including the forum

state’s statute of limitations).

{¶ 140} The majority pays lip service to these principles, but it meanders

through a muddied analysis that obfuscates the law for debtor and creditor alike so

that it can hold that Delaware’s statute of limitations applies. The majority

accordingly reaches the outcome desired by both it and the decedent’s estate: that

FRIC’s claims were time-barred when it filed its complaint against the decedent.

Application of the borrowing statute

{¶ 141} For R.C. 2305.03(B) to apply here, there necessarily must first be

a finding that the cause of action accrued in a different jurisdiction than Ohio. See

Combs v. Internatl. Ins. Co., 163 F.Supp.2d 686, 691 (E.D.Ky.2001) (“borrowing

statute is triggered only when the cause of action accrued in another jurisdiction”

[emphasis sic]), aff’d, 354 F.3d 568 (6th Cir.2004). The trial court in this case was

presented with conflicting arguments on that point and found little controlling case

law. Ultimately, it found the holdings by the federal trial and appellate courts in

Combs to be “most persuasive in assisting this Court in its determination of where

the present case ‘accrued.’ ”

{¶ 142} In Combs, a federal trial court applying Kentucky law in a diversity

case was confronted with a choice-of-law accrual question in a dispute involving

the alleged breach of an insurance contract. In a thorough analysis, that court

concluded that a cause of action for payment of money allegedly due accrues where

the decision to deny payment was made. 163 F.Supp.2d at 692-695.

{¶ 143} Applying Combs, the trial court in this case held that the breach

occurred in Ohio because the decedent made the decision not to make her payments

while she was in Ohio:

The Court finds that Ohio, where [the decedent] resides, primarily

used the credit card, and decided to stop making the minimum

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required payments on her credit card, was where the breach of the

agreement occurred. The fact that [the decedent] was required to

mail payments to Delaware does not determine where the breach

occurred—or where the action accrued. There is evidence that, for

some period of time, [the decedent] was mailing payments to

Illinois, rather than Delaware. She could have also chosen to make

her payments on the Internet, by telephone, or to a Chase bank

branch. The location where she sent her payments seems less

significant in this case than the place where [the decedent] decided

to stop making payments. In summary, the Court finds that

[FRIC’s] actions accrued in Ohio. For this reason, the Court finds

that Ohio’s statute of limitations applies to the present case.

(Emphasis sic.)

{¶ 144} I agree with the trial court’s approach—which is grounded in law

and common sense—that the location where the debtor lives, primarily uses the

card, and decides not to make the payments is more significant to the breach than

the place where payments would have been sent if there had been no breach. See,

e.g., Combs, 163 F.Supp.2d at 692-695. Because I would find the cause of action

accrued in Ohio, I would hold that the borrowing statute is inapplicable here.

{¶ 145} Conversely, the majority’s view, in essence, is that Ohio consumers

who are solicited with credit-card applications in Ohio, complete the applications

in Ohio and mail the applications from Ohio, then receive the credit cards in Ohio

and use the credit cards in Ohio, nevertheless would be better served by having the

law of Delaware—or whichever state they mailed their payments to—apply to any

claims arising from the credit-card agreements.

{¶ 146} Notably, however, the place where a creditor is incorporated or

requests to receive its payments should not be controlling, given that “Congress’

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purpose in passing the FDCPA was ‘to prevent debt collectors from bringing

collection suits in forums located at great distances from debtors’ residences.’ ”

Harrington v. CACV of Colorado, L.L.C., 508 F.Supp.2d 128, 134 (D.Mass.2007),

quoting Dutton v. Wolhar, 809 F.Supp. 1130, 1139 (D.Del.1992), citing S.Rep. No.

95-382, at 5, reprinted in 1977 U.S.Code Cong. & Adm.News 1695, 1699. And the

borrowing statute was designed to prevent a plaintiff from forum shopping when

the plaintiff’s claims have expired, Miami Valley Mobile Health Servs., Inc. v.

ExamOne Worldwide, Inc., 852 F.Supp.2d 925, 932 (S.D.Ohio 2012).

{¶ 147} As the majority acknowledges, Ohio’s borrowing statute, in

essence, “directs a forum court to ‘borrow’ the limitation period of another state if

the cause of action accrued in that foreign state and that state’s limitation period is

shorter than the forum state’s limitation period.” Majority opinion at 37, citing

Dudek v. Thomas & Thomas Attorneys & Counselors at Law, L.L.C., 702 F.Supp.2d

826, 835 (N.D.Ohio 2010), citing Combs, 354 F.3d at 578, and CMACO Automotive

Sys., Inc. v. Wanxiang Am. Corp., 589 F.3d 235, 244 (6th Cir.2009).

{¶ 148} The better-reasoned analysis of precedent mandates a

determination that the cause of action in this case accrued in Ohio, because an Ohio

consumer executed a contract for a credit card in Ohio, made purchases with that

card in Ohio, and defaulted on the debt in Ohio. As one court explained in

considering a choice-of-law dispute involving a Chase credit card issued to an

employee of an Ohio corporation, because the credit-card agreement “was applied

for and signed in Ohio and, as the card was used by an Ohio corporation, its primary

effect was in Ohio.” Heiges v. JP Morgan Chase Bank, N.A., 521 F.Supp.2d 641,

646 (N.D.Ohio 2007). The trial court in this case properly found that public-policy

considerations also support the conclusion that Ohio is where the cause of action

accrued, because the primary effect of the credit-card agreement was in Ohio.

{¶ 149} The majority looks to only one aspect of the history of the case and

elevates that fact—the place where payments were sent—to be dispositive. In

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doing so, it ignores the many compelling facts that indicate strongly that Ohio

interests predominate in this case: at all times relevant here, the decedent was an

Ohio resident, she applied for the card from her residence in Ohio, and her decision

not to make the payments due on her account was a decision made in Ohio. Thus,

the proper result is to hold that the cause of action accrued in Ohio, Combs, 163

F.Supp.2d at 692-695; Heiges at 646, and because it accrued in Ohio, R.C.

2305.03(B) is inapplicable and Ohio law controls the determination of the statute

of limitations, Combs at 691.

{¶ 150} The majority clings to Meekison v. Groschner, 153 Ohio St. 301,

91 N.E.2d 680 (1950), even though Meekison itself recognized that there is

abundant authority for the view that a cause of action accrues where the contract is

to be performed or where the breach occurs. Id. at 306. And Meekison is

fundamentally distinguishable from this case because it involved a simple note,

executed in Michigan by Michigan residents, that was required to be paid six

months later “at Napoleon, Ohio” pursuant to the explicit terms of the note. Id. at

302-303.

{¶ 151} In litigation involving simple, short-term contracts like basic

promissory notes, the rule stated in Meekison works well. But it retains little vitality

in the context of contemporary credit-card-collection cases, which arise from

monthly accountings of credit advanced by lenders to consumers for purchases and

the interest or other charges that accrue with that credit, routine defaults on the

required payments, and the frequent inability of consumers and creditors to

maintain adequate records of the underlying contracts establishing credit-card

accounts. It is no wonder that until today, no court in America has ever applied

Meekison in a reported decision involving a credit-card debt; and it has been 35

years since an Ohio appellate court last cited Meekison in any context. Its holding

should not be imported to the credit-card context presented by this case.

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Improper Application of Substantive Law

{¶ 152} Despite the majority’s haste to conclude that the cause of action

accrued in Delaware and therefore that Delaware law controls the statute of

limitations, the majority then ignores Delaware law in its analysis of the substantive

issues before us. I am left to wonder why, if the cause of action accrued in

Delaware, the majority’s analysis is absolutely devoid of any discussion of

Delaware substantive law. This is particularly of concern given that the decedent’s

attorneys provided the trial court with a Chase “cardmember agreement” as an

exhibit to a filing in that court, and that agreement clearly states that the terms and

enforcement of the cardholder agreement and the decedent’s account were

governed by federal law, “AND, TO THE EXTENT STATE LAW APPLIES, THE

LAW OF DELAWARE, * * * WHERE WE AND YOUR ACCOUNT ARE

LOCATED, WILL APPLY NO MATTER WHERE YOU LIVE OR USE THE

ACCOUNT.” (Capitalization sic.) I suspect that the majority wholly ignores

Delaware law in its analysis because it cannot use Delaware law to reach the result

it wants. Whatever its reasoning may be, it is clear that the majority applies Ohio

law to the substantive issues without any explanation of why Ohio law controls.

{¶ 153} Even assuming that Ohio law controls the resolution of the

substantive issues, the majority’s analysis is unsatisfying.

{¶ 154} The majority erroneously concludes that any cause of action against

the decedent accrued in Delaware because the decedent failed to make payments to

Chase in Delaware. In doing so, it ignores the record before us—premised on its

belief that all of the decedent’s payments were sent to Delaware—when, in fact, the

decedent’s attorneys submitted a document obtained during discovery to the trial

court establishing that she mailed payments to Delaware and Illinois, and the trial

court relied on that evidence in considering where the cause of action accrued. If,

as the majority concludes, the place of payment is dispositive, then the majority

should address why Illinois law is irrelevant to the analysis.

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{¶ 155} But that aside, the lead opinion’s analysis of the date the cause of

action accrued in this case is not sufficient.

{¶ 156} FRIC contended during discovery that the cause of action accrued

on January 1, 2005, the date that the decedent “first failed to make her minimum

[monthly] payment and defaulted on her obligation.” The decedent did not clearly

dispute that date, but in her amended counterclaim against FRIC and Cheek, she

alleged that the cause of action accrued “at the latest” on August 10, 2006, a date

one month after her last payment on the delinquent account. But the decedent never

established that the 2006 date was the date the cause of action accrued, and she

never established that FRIC’s assertion that the cause of action accrued in 2005 was

erroneous. The trial court found that the cause of action accrued in January 2005,

and the lead opinion adopts that as the time of accrual.

{¶ 157} The author of the concurring opinion agrees with the majority’s

analysis and disposition of this appeal, except that the author of that opinion asserts

that the cause of action did not accrue until June 28, 2006, the date on which the

decedent made her last payment. The report produced by the FTC mentioned

earlier suggests that the view expressed in the concurring opinion is consistent with

the law of most states, i.e., that “a partial payment on a time-barred debt revives the

entire balance of the debt for a new statute of limitations period.” Structure and

Practices at 47. And at least one Ohio appellate court has adopted a similar view.

Midland Funding, L.L.C. v. Hottenroth, 2014-Ohio-5680, 26 N.E.3d 269, ¶ 24 (8th

Dist.) (“Typically, the making of a partial payment on an open account before the

statute of limitations expires extends the implied promise to pay the balance owed

amount, acting to renew the statute of limitations period”), appeal accepted and

held for decision in this case, 142 Ohio St.3d 1464, 2015-Ohio-1896, 30 N.E.3d

973; see also Himelfarb v. Am. Express Co., 301 Md. 698, 705, 484 A.2d 1013

(1984). And one federal court, applying Delaware law, has noted that

“[d]etermining whether a debt is time-barred is not always a simple task,” because

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courts have to “consider many factors, such as the charge-off date, tolling issues,

revival issues, and any actions between the debtor and creditor that may have

modified their original agreement.” Riffle v. Convergent Outsourcing, Inc., 311

F.R.D. 677, 684 (M.D.Fla.2015), citing Hart v. Deshong, 40 Del. 218, 8 A.2d 85

(Super.1939) (Delaware law recognizes that an unconditional acknowledgement of

a debt or a payment on an account can extend the statute of limitations to collect

the debt).

{¶ 158} Given the majority’s ultimate holding that Delaware’s statute of

limitations applies, I need not opine on whether the lead opinion or concurring

opinion, if either, is correct. I expressly use the time of accrual adopted by the lead

opinion solely for purposes of evaluating the propriety of other aspects of the lead

opinion.

{¶ 159} If the lead opinion is correct in its determination of the time of

accrual, the lead opinion’s summary analysis permitting the retroactive application

of Ohio’s borrowing statute is not proper.4

{¶ 160} Ohio’s current borrowing statute, R.C. 2305.03(B), became

effective on April 7, 2005. Am.Sub.S.B. No. 80, 150 Ohio Laws, Part V, 7915,

7930-7931, 8037; see Dudek, 702 F.Supp.2d at 836. The borrowing statute cannot

be applied retroactively to deprive a party of the right to sue on an accrued

substantive right, including for breach of contract. See Ohio Constitution, Article

II, Section 28 (“The General Assembly shall have no power to pass retroactive

laws”); Gregory v. Flowers, 32 Ohio St.2d 48, 290 N.E.2d 181 (1972), paragraph

three of the syllabus (“When the retroactive application of a statute of limitation

operates to destroy an accrued substantive right, such application conflicts with

Section 28, Article II of the Ohio Constitution”). As Judge O’Malley wrote in

4

The concurring opinion’s analysis of the date the cause of action accrued places the accrual date

after the effective date of the borrowing statute.

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Dudek, a case on which the lead opinion relies, there is not an iota of authority

supporting retroactive application of the borrowing statute:

It is well-established that, in the absence of a “clear pronouncement

by the General Assembly that a statute is to be applied

retrospectively, a statute may be applied prospectively only.” State

v. LaSalle, 96 Ohio St.3d 178, [2002-Ohio-4009,] 772 N.E.2d 1172,

1175 (2002) [¶ 14]; see also State v. Brooks, 163 Ohio App.3d 241,

[2005-Ohio-4728,] 837 N.E.2d 796, 800] ([4th Dist.] 2005) [¶ 13]

(“In determining whether a statute is unconstitutionally retroactive,

a court must first determine whether the General Assembly intended

it to apply retroactively. In the absence of such an express finding

by the General Assembly, the presumption of prospective

application may not be overcome, and the court’s inquiry into

whether the statute may be constitutionally applied retrospectively

ends” [citations and footnote omitted]).

Nothing in the language of O.R.C. § 2305.03(B)

demonstrates that the Ohio General Assembly intended the statute

to apply retroactively. The Court has not located any case law

suggesting that the legislature intended O.R.C. § 2305.03(B) to

apply retroactively, and the parties have cited none. And, the few

courts that have considered this issue have held that the borrowing

statute cannot be applied retrospectively. Curl [v. Greenlee Textron,

Inc.], 404 F.Supp.2d [1001,] at 1008 [(S.D.Ohio 2005)] (“[T]here

[is] no precedent showing that Ohio courts would apply § 2305.03

retroactively”); D.A.N. Joint Venture III, L.P. v. Armstrong, [11th

Dist. Lake] No. 2006-L-089, 2007-Ohio-898, ¶ 29, 2007 WL

634457 (Ohio Ct.App.2007) (“Amended R.C. 2305.03(B) cannot be

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applied retroactively * * *”); Ormond v. Anthem, Inc., No. 05-cv-

1908, 2008 WL 906157, *19, n. 12, 2008 U.S. Dist. LEXIS 30230,

*59, n. 12 (S.D.Ind. Mar. 31, 2008) (“There is no evidence that the

Ohio General Assembly intended its borrowing statute to be applied

retrospectively”).

(Footnote omitted.) Dudek, 702 F.Supp.2d at 836-837.

{¶ 161} The lead opinion concedes that the effective date of the borrowing

statute—the linchpin of its analysis designed to invoke Delaware’s statute of

limitations—was more than three months after the date the lead opinion determines

the cause of action accrued. But it nevertheless retroactively applies the borrowing

statute to appellants, blithely asserting that “ ‘ “[a] period of limitations already

running may also be shortened by the legislature” as long as “a period sufficiently

long to allow a reasonable time to begin suit” is allowed.’ ” Lead opinion at ¶ 57,

quoting State ex rel. Nickoli v. Erie MetroParks, 124 Ohio St.3d 449, 2010-Ohio-

606, 923 N.E.2d 588, ¶ 29, quoting 1A Sackman, Nichols on Eminent Domain,

Section 4.102[3], at 4-74 (3d Ed.2006). The lead opinion suggests that the statute

of limitations can be reduced from six years to three years, because “even with that

shortening, there existed a reasonably long period of time for FRIC to file suit,”

and therefore the lead opinion concludes that applying the borrowing statute to this

case is not unconstitutional despite its retroactive application. Lead opinion at

¶ 58.

{¶ 162} But the lead opinion does not tell us why or how three years is

“reasonably long,” particularly when three years not only halves Ohio’s six-year

statute of limitations, but also obliterates FRIC’s claim while breathing life into the

decedent’s counterclaims. The borrowing statute cannot be employed retroactively

to create such a result. See Cook v. Matvejs, 56 Ohio St.2d 234, 237, 383 N.E.2d

601 (1978). Indeed, the lead opinion itself quotes our prior holding that the

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“ ‘ “retroactivity clause nullifies those new laws that ‘reach back and create new

burdens, new duties, new obligations, or new liabilities not existing at the time [the

statute becomes effective].’ ” ’ ” (Emphasis added.) Lead opinion at ¶ 55, quoting

Tobacco Use Prevention & Control Found. Bd. of Trustees v. Boyce, 127 Ohio

St.3d 511, 2010-Ohio-6207, 941 N.E.2d 745, ¶ 14, quoting Bielat v. Bielat, 87 Ohio

St.3d 350, 352-353, 721 N.E.2d 28 (2000), quoting Miller v. Hixson, 64 Ohio St.

39, 51, 59 N.E. 749, 752 (1901). It then wholly ignores the teaching of that

precedent, despite the fact that applying the borrowing statute in this case clearly

imposes new duties and liabilities on appellants who, prior to today, were not

forbidden from attempting to collect the decedent’s debt and now are even being

subjected to liability for doing so.

No Violation of the Consumer-Protection Statutes Occurred in this Case

{¶ 163} I agree, as a general matter, that debt collectors, including attorneys

engaged in debt collections, can be held liable under both the OCSPA and the

FDCPA. Heintz v. Jenkins, 514 U.S. 291, 299, 115 S.Ct. 1489, 131 L.Ed.2d 395

(1995). But I dissent strongly from the majority’s conclusions that because

appellants brought a claim that the court today declares was time-barred under

Delaware law and because appellants requested interest in an amount in excess of

Ohio’s statutory interest rate, they are potentially liable under both statutory

schemes. The majority’s flawed analyses of these two issues not only improperly

subject appellants to liability in this case, those analyses portend great risk for all

plaintiffs and their attorneys in future cases.

{¶ 164} As already explained, I would hold that the complaint was timely

filed, and therefore I reject the notion that the mere filing of the complaint can be a

statutory violation or can give rise to a potential abuse-of-process claim. More

importantly to the appellants before us is the fact that prior to this court’s holding

today, there was ample precedent to support a debt collector bringing suit in an

Ohio court against an Ohio debtor for a debt that was less than six years old.

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Appellants’ suit was not frivolous—nor was it sanctionable under the civil rules—

when the complaint was filed.5 Liability should not be imposed on these appellants

for not being sufficiently prescient to predict an outcome to this appeal that even

most justices of this court likely did not expect.

{¶ 165} Turning my focus to the issue regarding the amount of interest set

forth in the prayer in the complaint, the notion that FRIC’s demand for 24 percent

interest in the complaint giving rise to this suit violated the FDCPA and the OCSPA

requires more analysis. Although I agree with the decedent’s estate that FRIC

ultimately did not establish that it was entitled to interest at the rate claimed in the

complaint,6 I disagree with the estate’s contention—and the majority’s

determination—that demanding that rate in a complaint potentially violated the

FDCPA and the OCSPA.

{¶ 166} FRIC contends that it cannot be held liable under the FDCPA and

the OCSPA for asserting in its complaint that it was entitled to an interest rate of

24 percent. Having carefully evaluated precedent for both positions, I would adopt

the view of most jurisdictions, which supports FRIC’s position and is better

5

If a falsehood is alleged without good cause, the court may sanction the plaintiff pursuant to the

Ohio Rules of Civil Procedure. See Argentieri v. Fisher Landscapes, Inc., 15 F.Supp.2d 55, 63

(D.Mass.1988) (declining to impose sanctions under the FDCPA because they were imposed under

Fed.R.Civ.P. 11). But the fact that a plaintiff “demands” a particular legal conclusion, judgment,

and relief, whether in compensatory or punitive damages, interest, costs, or attorney’s fees, does not

make the requested relief the basis for sanctions unless there is a clear showing that the attorney

making the demand knew, or should have known, that the demand was not supported by the law.

See Civ.R. 11.

6

R.C. 1343.03(A) provides, with exceptions not relevant here, that a creditor is entitled to interest

on an account in either the statutory rate as determined pursuant to R.C. 5703.47 or the interest rate

set forth in a written contract entered between the parties. See, e.g., United Collections, L.L.C. v.

Tucholski, 6th Dist. Lucas No. L-04-1314, 2005-Ohio-2495, ¶ 4, 7. “R.C. 1343.03(A) requires a

written contract, not simply an additional term added to an invoice and met without resistance by

another party, to establish an interest rate greater than that set forth in R.C. 5703.47.” Minster

Farmers Coop. Exchange Co., Inc. v. Meyer, 117 Ohio St.3d 459, 2008-Ohio-1259, 884 N.E.2d

1056, ¶ 25. This court, Ohio’s courts of appeals, and the Sixth Circuit all hold that an invoice or

billing statement is not sufficient to establish a written agreement for purposes of R.C. 1343.03(A).

See Minster Farmers at ¶ 27-28, and cases cited therein.

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reasoned and consistent with both common law and the intent and goals of the

FDCPA. Several rationales are central to my conclusion.

{¶ 167} First, seeking damages, costs, and attorney’s fees in a complaint is

distinguishable from other conduct a debt collector may engage in. As one federal

district court in Ohio has explained in dismissing a FDCPA claim that was based

on the debt collector’s prayer for relief:

[A] prayer for relief does not constitute a representation that the

defendant must pay the amount listed, nor that the creditor is entitled

to these additional amounts. The prayer for relief is not a demand

to the debtor himself. Rather, the prayer for relief is what it purports

to be—a prayer or request directed to the court. The FDCPA does

not extend protection to communications to courts. See, e.g.

O’Rourke v. Palisades Acquisition XVI, L.L.C., 635 F.3d 938, 940-

41, 944 (7th Cir.2011) (“the Fair Debt Collection Practices Act does

not extend to communications that would confuse or mislead a state

court judge”).

Hrivnak v. NCO Portfolio Mgt., 994 F.Supp.2d 889, 898 (N.D.Ohio 2014).

{¶ 168} Another federal district court has explained the rationale for

rejecting the argument that a debt collector violates the FDCPA by making a claim

for attorney’s fees in a complaint to recover the debt from the creditor:

A prayer for relief in a complaint, even where it specifies the

quantity of attorney’s fees, is just that: a request to a third party—

the court—for consideration, not a demand to the debtor himself. A

request for attorney’s fees ultimately rests upon the discretion of the

court and a determination of applicability at a later stage of the

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litigation. The whole purpose of regulating debt collection was to

“supervise” a range of unsupervised contacts, such as demand letters

and late-night telephone calls. In contrast, a statement in a pleading

is supervised by the court and monitored by counsel. The two

situations are drastically different.

(Footnote omitted.) Argentieri v. Fisher Landscapes, Inc., 15 F.Supp.2d 55, 61-62

(D.Mass.1998.)

{¶ 169} Other federal courts around the country have adopted rationales

similar to Hrivnak and Argentieri. See, e.g., Sayyed v. Wolpoff & Abramson, L.L.P.,

733 F.Supp.2d 635, 649 (D.Md.2010) (holding that a prayer for attorney’s fees was

“a request directed to the court, not a communication directed to the debtor, and

certainly not a misrepresentation”); Winn v. Unifund CCR Partners, D.Ariz. No.

CV 06-447-TUC-FRZ, 2007 WL 974099, *3 (Mar. 30, 2007) (a prayer for relief

“is what it purports to be—a ‘prayer’ or request for a certain amount of attorney’s

fees”); Rael v. Davis, S.D.Ind. No. 1:06-cv-0081-JDT-TAB, 2006 WL 2346396, *5

(Aug. 11, 2006) (holding that a request for attorney’s fees in a complaint was a

request to the court, not a demand on the debtor, and noting that “resolution of the

request ultimately would depend on future events and the judgment of the state

court judge”). As the Seventh Circuit has noted,

Whatever shorthand appeared in the complaint * * * was harmless

rather than an effort to lead anyone astray. It was the judge, not [the

debtor], who had to be able to determine to whom the debt was

owed, for it is the judge (or clerk of court) rather than the defendant

who prepares the judgment specifying the relief to which the

prevailing party is entitled.

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Beler v. Blatt, Hasenmiller, Leibsker & Moore, L.L.C., 480 F.3d 470, 473 (7th

Cir.2007).

{¶ 170} Only a few cases have addressed the specific context of a prayer

for interest in a complaint that seeks to collect a debt. I agree with those that have

adopted and applied the rationale in Argentieri to cases in which interest is sought

in a complaint. See, e.g., Hart v. Pacific Rehab of Maryland, P.A., D.Md. No. ELH-

12-2608, 2013 WL 5212309, *23 (Sept. 13, 2013) (holding that a request for

prejudgment interest in a complaint is akin to a request to a court for attorney’s fees

and is not actionable as an improper FDCPA representation); Bird v. Pressler &

Pressler, L.L.P., E.D.N.Y. No. 12-CV-3007(JS)(ETB), 2013 WL 2316601, *2

(May 28, 2013) (applying Argentieri and finding no FDCPA violation because a

complaint’s “prayer for relief of pre-judgment interest is a request upon the Court”).

{¶ 171} Put another way, demands made in a complaint are “aspirational”

requests, not absolute statements of entitlement. Cisneros v. Neuheisel Law Firm,

P.C., D.Ariz. No. CV06-1467-PHX-DGC, 2008 WL 65608, *3 (Jan. 3, 2008)

(noting that the “fact that the prayer alleges a special amount is no more binding on

Plaintiff than any other factual allegation in the complaint” and that “the prayer for

relief is aspirational—it describes what the collection agency seeks if it prevails,

including ‘such other and further relief as the Court may deem just and proper’ ”).

{¶ 172} Indeed, Ohio law has long held that the prayer is not a dispositive

portion of the complaint. “The prayer of a petition is no part of the cause of action,

but merely indicates the object thereof, the remedy sought or the legal consequences

of the facts set forth in the petition. It is a mere incident to the petition.” Harbage

v. Ferguson, 27 Ohio Law Abs. 227, 229, 1938 WL 3192 (C.P.1938). See also

Martini v. Cicatiello, 74 Ohio Law Abs. 289, 292, 140 N.E.2d 336 (7th Dist.1955),

quoting 19 American Jurisprudence, Equity, Section 226, at 181 (1939) (“ ‘Prayers

for relief are special or general, and the cautious pleader includes both in his bill.

In the special prayer, the complainant indicates the particular relief which he

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deems suited to his case and asks the court to grant that relief; in the prayer for

general relief, he merely asks that he may have “such other, further, and general

relief as he may be entitled to” ’ ” [footnote deleted and emphasis added]). In other

words, the prayer merely reflects what the plaintiff seeks from the court, but the

complaint sets forth the theory of the case, and the evidence on damages adduced

in discovery and/or presented at trial controls the relief that the court ultimately

orders. See James H. Herron Co. v. Jones, 28 Ohio App. 190, 197, 162 N.E. 624

(8th Dist.1927); McGurrer v. Halliday, 15 Ohio Dec. 753, 754, 1905 WL 1273

(C.P.1905). Until today, the prayer alone has not been regarded as dispositive in

determining the nature of the cause of action. Goldstein v. Rousey, 8 Ohio Law

Abs. 439, 440, 1930 WL 2164 (1st Dist.1930); accord Roller v. Patrick, 145 Ohio

St. 572, 579, 62 N.E.2d 367 (1945). “[T]he prayer of a pleading is no part of the

cause of action, and the relief which may be given may be different than that asked

for in the prayer, but the prayer may be examined to determine what the pleader

intends by his pleading and the relief he is seeking and supposes he is entitled to

receive.” Parker v. Cent. Mfrs. Mut. Ins. Co., 98 Ohio App. 169, 176, 128 N.E.2d

440 (3d Dist.1953). The character of a claim should continue to be determined by

the contents of the entire complaint, and not, as the majority does here, by focusing

solely on the prayer. See Martini at 292.

{¶ 173} The court of appeals in this case distinguished this matter from

Argentieri and instead relied upon Foster v. D.B.S. Collection Agency, 463

F.Supp.2d 783 (S.D.Ohio 2006). The majority embraces Foster as well. But Foster

is wholly inapposite here.

{¶ 174} The court in Foster found that a violation of 15 U.S.C. 1692e(2)(b)

occurred because a request for attorney’s fees—not for interest—was made upon

the debtors despite the fact that such fees were categorically barred by an Ohio

statute, former R.C. 1301.21 (proscribing creditors from recovering attorney’s fees

incurred during litigation to collect “personal, family or household” debt). Id. at

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802. Foster turned on the court’s determination that the demand in the complaint

“constituted an absolute entitlement to attorney fees, even though such fees are not

recoverable under Ohio law.” Id.

{¶ 175} Similarly, the other courts that have found parties potentially liable

under the FDCPA based on prayers in complaints have focused on the fact that the

relief sought in the prayers was impossible or improper as a matter of law. See,

e.g., LeBlanc v. Unifund CCR Partners, 601 F.3d 1185, 1193, 1195-1198 (11th

Cir.2010) (liability could arise from a debt collector’s threat to file a lawsuit when

the debt collector had failed to comply with a statutory requirement to register as a

debt collector and therefore could not legally bring suit); Bradshaw v. Hilco

Receivables, L.L.C., 765 F.Supp.2d 719, 729-730 (D.Md.2011) (viewing the filing

of a debt-collection lawsuit without the required statutory license as “a threat to

take * * * action that cannot legally be taken” under 15 U.S.C. 1692e(5)); Russey

v. Rankin, 911 F.Supp. 1449, 1454 (D.N.M.1995) (a debt collector’s letter

threatening to file a collection lawsuit when the debt collector could not file a

lawsuit in its own name was an action that could not legally be taken). See also

Harrington, 508 F.Supp.2d at 136 (a fraudulent motion for default judgment is a

“threat to take action that cannot legally be taken” in violation of 15 U.S.C.

1692e(5)).

{¶ 176} The majority relies heavily on the Sixth Circuit’s decision in

Stratton v. Portfolio Recovery Assocs., L.L.C., 770 F.3d 443 (6th Cir.2014) to hold

that a mere request in a complaint for interest that is not available violates the

FDCPA. But as Judge Batchelder explained in her dissent in Stratton, that opinion

is built on shaky foundations:

Particularly pernicious is the majority’s holding that Stratton

has stated a claim under § 1692e(5). Section 1692e(5) prohibits

“[t]he threat to take any action that cannot legally be taken or that is

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not intended to be taken.” In this case, however, PRA actually filed

a state court complaint; it did not threaten to do so.

We instructed in Hartman v. Great Seneca Financial Corp.,

569 F.3d 606, 611 (6th Cir.2009), that “[w]hen interpreting the

FDCPA, we begin with the language of the statute itself.” (internal

quotation marks omitted). Although § 1692e broadly prohibits a

debt collector from using “any false, deceptive, or misleading

representation or means in connection with the collection of any

debt,” Stratton pleaded a violation of § 1692e(5), which specifically

requires a “threat.” The majority is right that we may “proscribe

other improper conduct which is not specifically addressed” under

§ 1692e, but Stratton has not alleged a violation of § 1692e and

§ 1692e(5) does not authorize the majority to ignore the specific

textual requirement.

To hold that PRA threatened to take illegal action the

majority must mean either (1) filing a complaint can be a “threat”

within the meaning of § 1692e(5), or (2) § 1692e(5) penalizes even

actions that have already been taken. Neither proposition is true.

***

We have never held that filing a complaint is itself a “threat”

within the meaning of § 1692e(5). The source of authority for the

majority’s contrary conclusion is our unpublished opinion in Gionis

v. Javitch, Block, Rathbone, LLP, 238 Fed.Appx. 24 (6th Cir.2007).

But in Gionis the actual “threat” to recover unauthorized attorney

fees appeared in an affidavit appended to the complaint, not in the

complaint itself. We said explicitly that the “unlawful ‘threat’ to

collect attorney fees was made in the Affidavit,” id. at 29, which was

intended to communicate directly with the debtor; the complaint was

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not itself the “threat.” Both Foster v. D.B.S. Collection Agency, 463

F.Supp.2d 783 (S.D.Ohio 2006), and Poirier v. Alco Collections,

Inc., 107 F.3d 347 (5th Cir.1997), are similarly distinguishable.

The reason for excluding complaints from “threat” liability

should be clear. If filing a court complaint is per se a “threat,” then

every time a debt collector loses in court it has threatened to take

action it may not legally take—it has thus violated the FDCPA. The

“least sophisticated consumer” standard does not mean that every

time a debt collector makes a reasonable mistake of fact or law it

has thus violated federal law. To hold that Congress contemplated

such a scheme defies belief.

(Emphasis sic.) Stratton, 770 F.3d at 454 (Batchelder, J., dissenting).

{¶ 177} FRIC’s request for interest at the 24 percent rate was not

necessarily barred by Ohio law. Had FRIC produced the actual agreement at issue

in this case and had the agreement provided th

This text is long and has been trimmed here. Open the source document for the complete record.